Child Custody matters involve deciding who gets custody of a child under the age of 18 years, where the parties live apart either married or never married. Legal custody is not presumed to be with either parent, even if the child lives with either parent (that parent only has physical custody). Neither parent is the "preferred" parent for custody. The child must be a resident of New York for at least six months prior, except in emergency situations. A grandparent, stepparent, sibling, relative or gay/lesbian partner may petition for custody where there are "extraordinary circumstances". Child custody petitions may be brought in Family Court if there is no divorce action pending or Supreme Court if there is a Contested Divorce pending.
Types of Custody:
There are several forms of child custody, joint legal custody, joint physical custody, split custody or sole custody. Joint legal custody is where the parties have joint decision making concerning the child(ren)'s education, medical and religion, but not the day to day decisions such as what the child wears. One parent usually has primary physical custody and the other gets child visitation. The courts can not grant joint custody unless both parties agree or if there is a history of domestic violence between the parties. Joint physical custody is where both parties share physical custody equally. The child(ren) spends equal time with both parents throughout the year. This form of custody is not favored because it disrupts the child(ren)'s routine. Split custody is where there are more than one child and one or more goes to live with one parent and the other(s) goes to live with the other parent. Sole custody is where one party has physical custody and makes all major decisions, while the other parent gets child visitation. The only restriction may be relocating out of state. A court order for sole custody is necessary to obtain a passport for a child if the non-custodial parent's whereabouts are unknown or the non-custodial parent refuses to agree to a passport for the child.
The Stages of the Child Custody Proceeding:
Child custody cases can be very taxing, emotionally, physically and financially. Child custody battles usually involve not only the parties, but other family members, friends, school personnel, physicians, court appointed law guardians and court appointed therapists, social workers and psychologists. The standard used in court is "the best interest of the child". Several factors will be considered by the court in making its determination, which includes, for example, which parent has been the primary caretaker, which parent is economically, psychologically and emotionally available and whether there was a history of domestic violence.
Forensics may be ordered by the court, where a social worker, therapist or psychologist interviews the parties and the child(ren) and makes a recommendation to the court about custody. The Probation Department or Administration for Children's Services ("ACS") will do a homestudy of both parents' home, will speak to doctors, teachers, friends, etc. and speak with the child(ren) and file a report with the court with its findings. The child(ren)'s wishes regarding which parent he/she wants to live with is considered usually when they are at least 7 years old. The older the child(ren) the more of an impact his/her wishes has on the court's decision. Once the preliminaries have been completed, the matter will be scheduled for a "fact-finding" which is equivalent to a trial.
The standard is "the best interest of the child". This standard requires the court to take into consideration what is in the emotional, psychological, emotional and physical well-being of the child. There are several factors considered, including but not limited to, the parent's availability for the child(ren), which parent has been the primary caretaker, the parent's focus on the child's development, etc. Unless there is a clear showing that one (or both) of the parents is "unfit", the courts will do a "comparative fitness" test to determine custody. A parent that has had little contact with the child(ren) has a lesser chance of being awarded custody. However, if that infrequent contact is as a result of the other parent's deliberate conduct, that may be a factor used to increase the chances of getting custody.
At any stage of the proceeding, the parties can come to an agreement. Entering into an agreement saves both time and money since the case can take up to a year before it's scheduled for trial and more than a year to be resolved.
Child Custody and Child Visitation/Child Support:
Unless "extenuating" circumstances have been found to exist, the non-custodial parent will be granted some visitation, both during the pendency of the child custody case and once it is completed. Even if one parent is granted sole custody, the non-custodial parent may still be granted child visitation. Child custody matters are heard by Court Attorneys/Referees while child support matters are heard by Support Magistrates, therefore they are separate cases. Even where there is joint custody, the non-custodial parent is required to pay child support. Only in split custody cases is there a possibility of neither paying child support.
Relocation and Modifying Child Custody:
When the lifestyle or home setting, i.e. relocation out of state of either parent changes, the child(ren)'s needs are not being met or one parent becomes unfit, a modification petition may filed to have custody changed. A showing of a "substantial change in circumstances" must be proven before the court will change custody. Again, the best interest of the child is the standard used. Relocating out of state usually requires the Court's permission, where the non-custodial parent's visitation may be affected, unless that party consents to the move.
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