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:
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.
A divorce is a chance to start all over again. Many people embrace this opportunity. They know that doing so can open doors and let them get the life they’ve always wanted. One often exciting thing about getting a divorce is being able to think about dating and forming personal relationships again. Finding someone new to be with is a great chance to get past unpleasant memories and move confidently into the future. At the same time, doing so can be highly complicated in the aftermath of a prior relationship. This is particularly true for those who have been through a divorce and have kids. Both parties may feel the need to find a new partner who is more supportive of their goals. Both parties should be careful when moving on to a new relationship after a divorce. This is especially important for the partner who has primary custody of the children.
A Cautious Approach
Keep in mind that the court system cannot mandate behavior between two grownups involved in a custody agreement unless under certain circumstances. Court officials cannot necessarily vet every single person’s dating choices even if the other partner does not like them. A court may step in if the new partner has a criminal record of some kind, especially if that record is related to abuse of children in any way. In that case, the person should be highly cautious about dating that person as doing so can have serious repercussions that may endanger their ability to keep primary child custody. If the person’s criminal record is known about in advance before the person begin dating them, this can be potential grounds to revoke the person’s custodial arrangements. If it is not known about in advance but is later discovered, this can also have serious legal consequences. The courts may look closely at the custodial parent and what kind of relationships they have chosen to form in the aftermath of the divorce. They may decide one parent is no longer fit to be the primary parent unless they agree to end the relationship or make sure the person they are dating is not around the children.
If there are no potential criminal issues for the spouse to deal with, it’s also best to go slowly. It’s best to keep any new relationship at bay for at least a few months. Doing so has many advantages for both the custodial parent and for all of their children. A separation and divorce are hard on children. Children may feel a tremendous sense of loss in the aftermath. A child may feel they are the reason their parents are no longer together and may become frustrated or depressed. A parent who takes up with another person immediately can create further chaos and feelings of anxiety and anger for children. Children may resent having another person around that is not related to them. In that case, the child may even decide to take action and speak up. They may tell the other parent they do not want to be around the new person in their primary custodial parent’s life. A court may take this into consideration going forward. The non-custodial parent can head back into court and ask that the child’s wishes be heard when it comes to matters of custody going forward. It’s entirely possible that the judge may decide that the child’s wishes should be honored. In that case, the child may want to stay with the other parent. A court can take custody from one parent and give it to another instead.
The decision to bring in another member of the household may also have other reverberations. After a divorce, the judge may mandate certain financial arrangements. In many cases, they will mandate a certain level of funding for the primary custodial parent. This is because that parent is taking on the role of providing things such as food and a roof over the child’s head as well as help with getting to school and after school care arrangements. Bringing a new person into the relationship can have fiscal consequences. The new person may help with specifics such as food and the mortgage. The other parent may find out about this and ask the court to reduce the amount of child support they pay because someone else is helping out. This is why experts recommend keeping highly detailed personal fiscal records if any custody arrangements are challenged
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