For parents, one of the most critical and potentially challenging issues of a divorce or legal separation is custody and visitation. Who should the children live with? Will there be a primary caregiver or will both parents share equal time with the children? Do both parents participate in decision-making, or does only one parent make decisions about important issues like health and education? What visitation rights does the father have and which does the mother have? How do I get custody of my children? This can be an emotionally charged and often complex process in which the parties can greatly benefit from legal representation.
Hiring an effective child custody attorney can help give you confidence that your parents' rights are protected. Ksenia Rudyuk, Senior Attorney at Rudyuk Law Firm, P.C., is an experienced Russian-speaking child custody attorney in New York City and will work with you to resolve any issues that arise regarding child custody and visitation procedures.
Child custody in New York
“Custody” refers to a parent's right to make choices about a child and/or to place and care for a child, depending on the type of custody granted. In New York, courts award custody based on what is considered "in the best interests of the child" and only until the child turns 18. Divorce, annulment and separation proceedings, adoptions and the death of parents can raise questions about custody.
What types of custody are there?
There are two main types of child custody in New York. custody and physical custody. If there is no custody order, both parents automatically share custody (both legal and physical) and to change this a parent can petition the court, often working with a lawyer.
Legal custody gives parents the right to make important decisions about their child's upbringing, including religion, health and education. If the court awards joint custody, both parents share the right to make decisions about the child's upbringing, regardless of where the child lives. In joint custody cases, parents are expected to cooperate and communicate effectively.
When it comes to custody, courts often try to uphold equality for divorced parents. However, the court will place the needs of the child ahead of the wishes of the parents and joint custody will only be granted if it is deemed to be in the best interests of the child.
In some custody agreements, one parent is granted sole custody, which may be the case when the court has found the other parent unable to make decisions for the child or when joint decision-making is not possible.
Physical custody (also known as home custody) gives the parents the right (and duty) to provide shelter to the child and to make decisions about the day-to-day care and supervision of the child.
Parents can share custody, in which case the parents can swap parental leave with the child according to a set schedule and agreement.
Alternatively, the court may award one parent primary custody. This parent, referred to as the custodial parent or primary caregiver, has physical custody of the child most of the time (more than 50%) and is responsible for caring for the child most of the time (or all of the time) while the parent is in custody not - the custodial parent may have visitation rights.
Who can apply for custody?
In New York, neither parent has greater custody (one parent's rights are equal to the other unless otherwise directed or agreed), and children may live with either parent. Either the mother and father, or another legal parent, can apply for custody of the child in New York in their county's family court.
Non-parents, ie other relatives (e.g. grandparents) or persons who have an important relationship with the child, can also apply to the court for custody of the child. To do this, they must demonstrate that there are exceptional circumstances justifying their request for custody and that it would be in the best interests of the child for that relative or friend to have custody of either parent. These parties do not have automatic custody, and it is rare for a third party to gain custody of a parent, but it is possible for a third party to be designated primary custody of the child.
How do I start a custody case?
Court Must Have Jurisdiction First - The first thing to do when seeking custody of a child in New York is to make sure that New York state has jurisdiction. Before the court can rule on custody of a child, it first determines whether it has jurisdiction over the case. A New York court will have jurisdiction if: a) the child has lived in New York for the past six months (or is less than six months old and has lived in New York all his life), b) there is a prior custody order for the child was ordained in New York; or c) the child is in New York due to an emergency in their home state.
Petition Required: If you are petitioning for custody of a child in New York, you must petition family court for custody and explain in the petition why you need custody of the child. A parent can apply for custody or visitation by filing a divorce or separation case with the Supreme Court. (See also: Divorce, Annulment, and Legal Separation in New York.) If divorce proceedings are already pending, any pending or newly filed family court motions can be referred to the Supreme Court and the family court proceedings can be coordinated with the divorce proceedings. This petition is important, and having an experienced family law attorney draft and file it on your behalf will give you peace of mind.
Subpoena must be served: Unless otherwise ordered by the court, custody documents must be served on the other parent (or, if served by a non-parent, on the custodial parent or custodians). These documents must be delivered personally by someone other than the petitioner.
It will be necessary to appear in court: In most custody cases in New York, each child is assigned an attorney for the child who will meet with the child and represent him in court and inform the court of the boy's wishes. The child advocate works independently of the parents and their advocates for the best interests of the child, although the child advocate sometimes meets with the parents.
Custody can be negotiated and resolved by the parties: Often in the custody process, the parties will try to reach a voluntary settlement and work out the details of custody and contact together. If they reach a voluntary settlement, the settlement may be filed with the court and an order issued without the need for a formal hearing.
Sometimes a court hearing is required: If a custody agreement cannot be reached, a court hearing to resolve the issue is scheduled as part of a divorce proceeding in federal court, if the proceeding is not already pending. solved, or in the family court. During the trial, the court may issue temporary detention and visitation orders before issuing the final order. The parties can reach a custody and visitation agreement prior to the trial, even if they were initially unable to do so.
How does the court decide on custody?
In all New York custody cases, the primary concern of the court is the best interests of the child. In determining custody of the child, the court assesses the ability of the parent (or other applicant caregiver) to meet the needs of the child and evaluates all factors affecting the child's ability to care for and support the child , including:
- age, health and finances
- emotional attachment to the child.
- Evidence of domestic violence or substance abuse
- home environment
- Child's preference (more likely to be considered if child is older)
This list is incomplete. The court may consider any factors that may affect the best interests of the child. The best way to find out how your particular circumstances may affect your New York child custody case is to consult with a New York child custody attorney.
Planning visits to New York
In New York, custody and visitation rights are considered separate matters. However, custody and visitation rights are often decided at the same hearing. (Although a visit request can be made separately).
Who Can Apply for Visitation Rights in New York?
Noncustodial Parent - Generally, the court seeks to ensure that a child can maintain a relationship with both parents. Thus, when a parent has primary custody, the noncustodial parent can generally be granted "frequent and significant" visitation rights unless it can be shown that granting the visitation would be harmful to the child.
Legal Parent: If the parents were never married, the father has no custody or visitation rights unless recognized as the legal parent by: a) signing an acknowledgment of paternity, b) obtaining a court order of paternity, or c) if you are in the Child's birth certificate listed as father. The father must first establish paternity in order to apply for custody or visitation.
Non-parents: The child's siblings, half-siblings and grandparents may apply to the court in New York for visitation rights. It is more common for these parties to be granted visitation rights than custody in New York, but not guaranteed.
Parents of a foster child: A parent who has a foster child has visitation rights as long as parental custody has not ended.
What Visitation Rights Does a Noncustodial Parent Have?
Legal parents have the right to visit a child unless a court decides that it is not in the best interests of the child to do so.
If the parents cannot agree on a visitation schedule, the parent requesting the visit can file an application against the parent with custody.
The custodial parent may not refuse or interfere with court-ordered visits unless they believe that a visit would endanger the child. Even if a parent refuses to visit the child, the custodial parent cannot enforce a visit, although this may result in reduced visitation rights.
If you think your parents' custody or visitation rights are being violated, contact a family law attorney to determine your options and how to proceed.
What problems can arise when creating a visit agreement?
As with child custody, the parties can work together to reach a visitation arrangement, and given the right circumstances and guidance, the process can be relatively straightforward and result in more peaceful post-trial relationships. But for some, the subject of visits can be very controversial.
Creating a visitation agreement involves a number of different considerations, each of which can lead to disputes, including:
- Create a visit plan that satisfies both parties
- Change of child from one parent to the other
- parent communication
- determine parental responsibilities during parental leave
There is no one-size-fits-all visiting arrangement, and given the challenges that can arise during the visiting process, you may benefit from working with an experienced family law attorney in New York to help you through the process.
Your key to a successful solution
Ksenia Rudyuk from Rudyuk Law Firm, P.C. is an experienced attorney who can work with you to develop, negotiate, and implement a custody and visitation plan that is best for your family while protecting your rights.Law office Rudyukcan help you explore all the options for your specific circumstances to determine what course of action is right for you.