17 Jul 17

New York Custody Lawyer

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If you face a divorce, paternity, or post-divorce matter that involves custody issues, including those centering on joint custody, you need to have a basic familiarity with New York law. A New York joint custody lawyer can provide you not only the information you desire, but the representation you need to best protect your legal rights and interests.

Joint Custody Defined

Joint custody represents a custodial arrangement in which both parents share in the upbringing of a minor child. Joint custody in New York is generally contrasted with sole custody. Under a sole custody arrangement, only one parent plays a primary role in the upbringing of a minor child.

Joint Custody is Never Presumed

A New York judge doesn’t start any case on the presumption that joint custody is the best option for a child. If you are making a request for joint custody in family court, then you’ll be obligated to show the judge why it’s in the best interests of the child to have shared custody between both parents.

The New York case of Trolf v. Trolf speaks of some situations where joint custody might make the best sense. A court can award joint custody in families where the parents can get along reasonably well. Trolf showed us that in situations where the parents can be polite to one another and cooperate for the sake of the children, joint custody can be awarded.

Even hurt feelings in a marriage shouldn’t stop a qualified parent from having joint custody. It doesn’t make a difference if the parents get along with each other or not. What makes the difference is if they can reasonably cooperate for the good of the children.

Joint Legal Custody

According to New York law, legal custody is the ability of a parent to make primary life decisions for a minor child. These decisions include such matters as religion, education, and medical matters. Joint legal custody exists when both parents share in making primary life decisions for a minor child.

Joint Physical Custody

Pursuant to New York law, physical custody is the right of a parent to provided a residence for a minor child. Joint legal custody is a situation in which both parents provide a residence for a minor child a substantial amount of time.

Division of Custody

New York law permits custodial arrangements to be divided in a number of different ways. For example, one parent might have sole physical custody of a child and yet share legal custody with another parent. In another scenario, both parents may jointly have legal and physical custody of a child. A situation could even exit when one parent has both legal and physical custody of a child and the other parent has neither.

Who Has the Legal Right to Petition for Custody of a Child in New York?

The mother and legal father of a child both have the legal right to petition for custody of their child or children.  The “legal father” is a man who:

  1. has signed an Acknowledgement of Paternity, 
  2. has received an Order of Filiation from the court, or 
  3. is listed as the father on the child’s birth certificate.  

Any of these documents is sufficient to demonstrate paternity.  In plain English, they are proof that a man is the legal father of his child. 

For children born in the confines of marriage, there is a legal presumption that the husband of the child’s birth mother is the child’s real father.  

In circumstances where a child was conceived by artificial insemination or in-vitro fertilization with the spouse’s written agreement, that paternity presumption is also applied. 

As a result of a case decided in 2016, in some scenarios, the domestic partner of the child’s birth or adoptive parent is capable of establishing parenting rights.  This applies even if the partner was not married to the person listed as a parent on the child’s birth certificate or never legally adopted the child. 

Whatever the family circumstances, neither of the parents has more of a right to custody than the other.  If there is no custody order in existence, then either parent can keep the child.

Family friends and relatives of a child also have a right to petition the court for custody of a child.  To accomplish this, they would have to demonstrate that there are “extraordinary circumstances” that would give them a plausible reason to request custody in preference to either of the natural parents. So called “extraordinary circumstances” can include circumstances such as surrender by the parent, abandonment, persistent neglect, unfitness, or disruption of custody over an extended timeframe. If they are capable of demonstrating extraordinary circumstances, then they would also need to demonstrate that it is in the best interest of the child for the non-parent to be granted custody.

Establishing a Joint Custody Agreement

Parties to a divorce, or paternity, case have the ability to negotiate a custody agreement. In fact, courts usually encourage parents to attempt to negotiate an agreement between themselves when it comes to issues like custody of a minor child.

Even when parties negotiate a custody arrangement, that agreement must still be approved by the court. The court must make sure that the custody agreement meets the legal standard for such legal and physical custody in the state of New York.

The Legal Standard for Custody

New York law outlines the standard to be utilized in establishing the custody of a minor child. It covers both legal and physical custody. It applies to a situation in which joint custody is being considered.

In New York, a custody arrangement must be determined to be in the best interests of the child. In determining whether the arrangement is in the best interests of a child, a court will look at a variety of different factors.

Considerations include the health of the parties, the residential situation of the parties, and a look at which parent historically has been the primary caretaker of the child. Other factors can also come into play depending on the unique situations of a case.

Retain a New York Joint Custody Lawyer

Your first step in obtaining legal representation is arranging an initial consultation with an experienced New York joint custody lawyer. During this preliminary meeting with a lawyer, you obtain an evaluation of your situation and answers to any questions that you might have about joint custody and other issues. There typically is no fee charged for an initial consultation with a New York joint custody lawyer.

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