The issue of child custody is a contentious one, as both parents going through a divorce tend to want to maintain significant contact with their children. Unlike assets such as finances and some marital property, children cannot be split in half, and this can present a problem in more acrimonious divorces. New York State strives to advocate on behalf of the children and devise custody and visitation agreements to which both of the parents in every divorce case feel comfortable consenting, but there is great variability among the particulars of divorces from case to case. As you prepare for your divorce, the prospect of child custody may seem intimidating; after all, there is often no way to know until late in the divorce process how child custody will work. These points will not settle your custody battle for you, but they will help you to know what to anticipate regarding your children’s living arrangements as you work with your attorney to finalize your divorce.
Courts Will Try to Keep the Child with Both Parents.
For the most part, courts in New York operate on the belief that a child will benefit from having contact with both parents. This is the principle underlying all decisions about visitation rights. However, in some cases, the court will grant physical custody to only one parent. When this happens, the parent not granted child custody, also known as the non-custodial parent, will have the right to visit her or his child. If applicable, the court will issue an order that sets up the visitation schedule and rules. (Visit the NYCourts.gov website to learn more).
Visitation Rights Are Not Limited to Parents.
Usually, only the non-custodial parent will ask for visitation rights. However, grandparents and siblings can ask for visitation rights as well. As with all other decisions involving children, the court considers the interests of the child, not the interests of the party requesting visitation rights.
The Court May Have to Step in to Decide a Visitation Schedule.
Ideally, the parents will agree on a visitation schedule. When this is not possible, a judge will decide the visitation schedule (and any rules, if needed). The process in which courts decide visitation is similar to the process for determining custody. In fact, when the court issues a custody order, it also issues a visitation order. The court will have a hearing and gather evidence to make its visitation decision. The overarching principle guiding the court’s thought process will be doing whatever is in the best interests of the child. In making this determination, the court will take testimony from the parents, people who know the child (such as teachers), and professionals like social workers, psychologists, and healthcare workers.
Family Law Has Evolved in Its Treatment of Child Custody.
In the past, visitation was usually limited; a non-custodial parent might see the child every other weekend and on alternating holidays. The courts now are trying harder to allow both parents to spend time with their child. Courts may allow the non-custodial parents to spend evenings or afternoons with the child, pick the child up from school, or go on summer vacation with the child. Except in unique circumstances, a court will usually grant at least some visitation rights to the non-custodial parent. Even in instances in which the non-custodial parent poses some threat to the child’s emotional or physical well-being, the court will still usually grant visitation, albeit under close supervision.
Visitation May Be Supervised in Certain Circumstances.
Supervised visitation works only in cases where the court concludes that, despite the risks, visitation would be in the child’s best interest. Any history of domestic abuse, child abuse, mental illness, or substance abuse would not immediately disqualify a parent from visitation rights, though visitation would likely require supervision in any case involving those issues. The exact risk that the non-custodial parent presents to the child and others will determine the nature of the supervision. In situations where the non-custodial parent is not considered a significant risk, the third party supervising the visit can be court-approved neighbors or friends. In more extreme cases in which the non-custodial parent is dangerous to the child, the supervising third party may be a professional with the physical ability to protect the child if necessary.
If the Custodial Parent Is Waffling on the Agreement, There Can Be Legal Action.
Custodial parents do not always cooperate with the non-custodial parents and allow them to visit the child according to the specifications of the court order. Should this occur, the non-custodial parent can ask the court to issue a visitation enforcement order. In situations when the non-custodial parent is paying child support and the custodial parent is not allowing visitation, the non-custodial parent cannot withhold child support payments. The requirement to make child support payments or allow visitation are two separate legal issues. Only a court order can alter the non-custodial parent’s child support obligations. In some situations, however, the court may suspend the non-custodial parent’s child support requirements if the custodial parent is interfering with visitation. This decision, though, is not to be made by either parent. Additionally, if the custodial parent continues to interfere with visitation, the court may modify its original child custody order.
Determining child custody can be one of the most difficult and labyrinthine aspects of a divorce due to the sheer number of perspectives in play and possible outcomes. An attorney with a substantial background in marital and family law can support you as you cope with this stage of your divorce. As long as you communicate your wishes and seek a compromise, your attorney will take care of the more convoluted, taxing, and nitty-gritty tasks and negotiations. Consult our dedicated Buffalo family law attorneys today with any lingering questions you may have about the intricacies of child custody arrangements. You can also read our guide to family law in New York to learn more.