Child Custody, Visitation
What is child custody in New York State?
How do New York courts decide child custody?
Do mothers automatically receive child custody in New York?
Are New York judges prejudiced in favor of mothers or fathers in deciding child custody cases?
What is the most important factor in deciding child custody?
May a child decide where he or she wants to live?
How does a judge find out about the child's preferences in a child custody case?
If a parent has a sexual relationship outside of marriage, how does that impact on a New York court's decision on child custody?
If a parent is homosexual, what impact does that have on child custody in New York?
If one parent is trying to undermine the child's relationship with the other parent, how does that affect child custody in New York?
If one parent is religious and the other is not, may a New York court favor the more religious parent in a child custody case?
Can child custody decisions be changed in New York?
If a parent does not receive child custody, how much visitation is he or she likely to receive under New York child custody law?
Under what circumstances may the custodial parent deny the other parent visitation under New York law?
What is joint child custody under New York law?
Are New York courts required to order joint custody if a parent asks for it?
Does a custodial parent have the right to relocate under New York law?
What can a noncustodial do if the custodial parent denies or interferes with visitation under New York law?
What legal remedies are available if a child is abducted by a parent?
What are a stepparent's duties and rights under New York child custody law?
What are grandparents' rights to visitation under New York child custody law?
May courts award grandparents custody of their grandchildren under New York child custody law?
Q: What is child custody? A : Child custody is the right and duty to care for a child on a day-to-day basis and to make major decisions about the child. In sole custody arrangements, one parent has physical custody, takes care of the child most of the time and makes major decisions about the child. In joint custody arrangements, both parents share in making major decisions and both parents also might spend substantial amounts of time with the child.
Q : How do courts decide custody? A: If the parents cannot agree on custody of their child, the court decides custody according to "the best interest of the child." The best interest of the child is the only consideration when New York courts decide a custody case. Determining the best interest of the child involves consideration of many factors, such as the fitness of a parent, stability and continuity of a child life.
Q : Do mothers automatically receive custody? A : No. Mothers and fathers have an equal right to custody. Courts are not supposed to assume that a child is automatically better off with the mother or the father. In a contested custody case, both the father and mother have an equal burden of proving to the court that it is in the best interest of the child that the child be in his or her custody. However, in reality, mothers get custody more often than fathers. The reason is probably that mothers get child custody initially through the parties agreement. New York courts are cautious to modify any custody arrangement because the courts are reluctant to disrupt the stability of a child's life.
Q : Are judges prejudiced in favor of mothers or fathers in deciding custody cases? A : As a group, judges are less biased in deciding custody cases today than in times past, although some bias still exists. Some judges, based on their background or personal experience, may have a deep-seated belief that mothers can take care of children better than fathers and that fathers have little experience in parenting. Conversely, some judges may believe that fathers automatically are better at raising boys--particularly older boys. Judges with such biases may apply these views when they decide custody cases, although they are supposed to base decisions on the facts of each case and not on automatic presumptions.
Q : What is the most important factor in deciding custody? A : That will vary with the facts of each case. In most cases, it is who is child's the primary caretaker. If one parent can show that he/she took care of the child most of the time, that parent usually will be favored for custody, particularly if the child is young (under approximately eight years old). The courts aim to promote continuity in the child's life and give custody of the child to the more experienced parent who has shown the dedication to take care of the child's day-to-day needs.
Q : May a child decide where he or she wants to live? A : The wishes of a child can be an important factor in deciding custody. While the courts must consider the wishes of a child, New York courts do not consider a child's preferences determinative. The weight a court gives the child's wishes will depend on the child's age, maturity, and quality of reasons. A court is more likely to follow the preferences of a child 13 years old or older.
Q : How does a judge find out about the child's preferences? A : Usually a judge will have an in-camera interview with the child. Law guardians may also inform the court a child's preferences.
Q : If a parent has a sexual relationship outside of marriage, how does that impact on a court's decision on custody? A : Extramarital affairs or sexual relations are a factor in deciding custody unless it can be shown that the affairs have harmed the child's welfare.
Q : If a parent is homosexual, what impact does that have on custody? A : None. A parent's sexual orientation does not have any impact on his/her child custody as long as the child has not been adversely affected. New York treats homosexual and heterosexual relationships equally and will not consider the relationship to be a significant factor unless specific harm to the child is shown.
Q : If one parent is trying to undermine the child's relationship with the other parent, how does that affect custody? A : New York declares a specific policy favoring an ongoing, healthy relationship between the child and both parents. If one parent is trying to undermine the child's relationship with the other parent, that is a negative factor against the parent who is trying to hurt the relationship. If other factors are close to equal, a court may grant custody to the parent who is more likely to encourage an open and good relationship with the other parent. If the custodial parent has attempted to alienate the child from the noncustodial parent, it is most likely that the court will change the custody.
Q : If one parent is religious and the other is not, may the court favor the more religious parent? A : Normally, no. Under the First Amendment to the United States Constitution, both parents have a right to practice religion or not practice religion as they see fit. A judge is not supposed to make value judgments about whether a child is better off with or without religious training or about which religion is better. If a child has been brought up with particular religious beliefs and religious activities are important to the child, a court might favor promoting continuity in the child's life, but the court should not favor religion per se. In some cases, a parent's unusual or non-mainstream religious activities may become an issue, but, normally, a court should not consider a parent's unusual religious practices in deciding custody or visitation unless specific harm to the child is shown.
Q : Can custody decisions be changed? A : Yes. A court may always change child custody arrangements to meet the changing needs of the growing child and to respond to changes in the parents' lives. A parent seeking to change custody through the court usually must show that the conditions have changed substantially since the last custody order, and that changing the custody arrangement would serve the best interest of the child.
Q : If a parent does not receive custody, how much visitation is he or she likely to receive? A : That will vary with the desires of the parents and the inclinations of a judge. A common amount of visitation, however, is: every other weekend (Friday evening through Sunday); a weeknight (for dinner); half of the child's and winter and spring breaks; alternate major holidays; and several weeks in the summer. If parents live far apart and regular weekend visitation is not feasible, it is common to allocate more summer vacation and school holidays to the noncustodial parent. For parents who do not like the term "visitation" or "custody," it is possible to draft a custody and visitation agreement that leaves out those terms and just describes the times at which the child will be with each parent.
Q : Under what circumstances may the custodial parent deny the other parent visitation? A : Only a pressing concern and proof that visitation was inimical to the welfare of the children would justify deprivation of a parent's reasonable visitation. For example, if the noncustodial parent has molested the child, is likely to kidnap the child, or is likely to use illegal drugs or excessive amounts of alcohol while caring for the child, a court probably will deny visitation or restrict visitation. If visitation is restricted, visitation might be allowed only under supervision, such as at a social service agency or in the company of a responsible relative.
Q : What is joint custody? A : Joint custody has two parts: joint legal custody and joint physical custody. A joint custody order can have one or both parts. Joint legal custody refers to both parents sharing in major decisions affecting the child. The most common decisions are on school, health care, and religious training (although both parents have a right to expose the child to his or her religious beliefs). Others are on which the parents may make joint decisions include: extracurricular activities, summer camp, age for dating or driving, and methods of discipline. Many joint custody orders or agreements specify procedures parents should follow in the event they cannot agree on an issue. Joint physical custody refers to the time the child spends with each parent. The amount of time is flexible. The length of time could be relatively moderate, such as every other weekend with one parent; or the amount of time could be equally divided between the parents. Parents who opt for equal time-sharing have come up with many alternatives such as: alternate two-day periods; equal division of the week; alternate weeks; alternate months; alternate four-month periods; and alternate six month periods. If the child is attending school and spends a substantial amount of time with both parents, it usually is best for the child if the parents live relatively close to each other. Some parents, on an interim basis, have kept the child in a single home and the parents rotate staying in the home with the child.
Q : Are courts required to order joint custody if a parent asks for it? A : No. Courts may order joint custody or sole custody according to what the judge thinks is in the best interest of the child. The most common reason for not ordering joint custody is the parents' inability to communicate or cooperate. Courts are concerned that a child will be caught in the middle of a tug-of-war if joint custody is ordered for parents who do not cooperate with each other. Parents who do not cooperate also will have trouble with sole custody and visitation, but the frequency of conflicts may be somewhat less since they will need to confer less often on major decisions and the logistics of a joint physical custody arrangement.
Q: Does a custodial parent have the right to relocate? A: A custodial parent may relocate with the child with the noncustodial parent's permission or a court order. In relocation cases, New York courts will consider all relevant factors, including each parent's reasons for seeking or opposing move, impact of move on quantity and quality of child's future contact with noncustodial parent, and feasibility of preserving relationship between noncustodial parent and child through suitable visitation arrangements. Relocation restriction included in parties' separation agreement might be additional fact or relevant to court's.
Q: What can a noncustodial do if the custodial parent denies or interferes with visitation? A: If a custodial parent denies or interferes with the noncustodial parent's visitation rights, the noncustodial parent may suspend and cancel maintenance and alimony payment. The noncustodial parent may seek a court order to suspend child support as well.
Q : What legal remedies are available if a child is abducted by a parent? A : Abduction of a child by a parent is a crime under federal law and the laws of most states. Local police, state police, and in some cases the FBI can help in locating missing children. Parents who abduct their children also can be forced to pay the expenses incurred by the other parent in trying to find and return the child. To recover such expenses, a parent usually would need the help of a private attorney.
Q : What are a stepparent's duties and rights? A : The responsibilities of a stepparent depend on state law. A stepparent usually is not liable for a spouse's children from another marriage, unless the stepparent has adopted the children. Until then, the children's biological parents are liable for their support.
Q : What are grandparents' rights to visitation? A : New York law allows grandparents to seek visitation with their grandchildren when both or either parents deceased, or under equitable circumstances such as a parent-like relationship between the child and the grandparents. However, in June 2000, the United States Supreme Court issued a ruling that will make it more difficult for grandparents to obtain court-ordered visits with their grandchildren. In the case of Troxel v. Granville, Justice O'Connor ruled: "[S]o long as a parent adequately cares for his or her child (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." The scope of the Supreme Court's decision is uncertain. The Court certainly believed that parents should be given more deference on decisions with whom the child will associate than was provided by the state law. The Court, however, left open the possibility that some grandparents would be entitled to obtain court-ordered visitation. Such visitation might be allowed, for example, if the grandparents can show that they had a particularly strong relationship with their grandchildren, such as perhaps when the grandparents had raised the grandchildren for a number of years before primary custody of the children returned to the parents.
Q : May courts award grandparents custody of their grandchildren? A : Yes. New York courts may award grandparents custody of their grandchildren when both or either parents deceased, or under certain extraordinary circumstances. The legislature finds that, with 413,000 children living in grandparent headed households in New York state, grandparents play a special role in the lives of their grandchildren and are increasingly functioning as care givers in their grandchildren's' lives. In recognition of this critical role that many grandparents play in the lives of their grandchildren, the legislature finds it necessary to provide guidance regarding the ability of grandparents to obtain standing in custody proceedings involving their grandchildren. New York enacted a law in 2003, providing that grandparents can receive custody if they take care of the grandchildren at the grandparents' household for a long period of time.