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Child custody cases in the state of New York are handled by the Family Courts. This is a unique and challenging area of the law that has many differences from normal criminal or civil proceedings. If you are going through a custody hearing regarding your children or grandchildren, the best thing that you can do to ensure that you will have the best possible chances of prevailing is to get a skilled and experienced child custody lawyer on your side. The right lawyer can give you the edge you need to win in child custody disputes.
In custody hearings, the biological parents are heavily favored
If you are seeking to retain or be granted custody of your grandchildren, we will be honest with you: You will be facing an uphill battle. However, there are ample precedents set that have established that non-parental figures may be granted custody. The fact that you share a biological kinship with your grandchildren can also greatly aid you, so long as you are able to demonstrate that retaining custody is in your grandchildren’s best interest.
Unlike other areas of the law, child custody law in New York is heavily framed upon the existing body of case law. While there are statutory laws, such as the Domestic Relations Laws, that govern some aspects of child custody hears, the majority of the controlling law in custody cases and in Family Court generally is predicated upon case law and precedential rulings.
One such example is the case of Bennett v. Jeffreys. That case established that even non-relatives may retain custody of a child where the biological parent had relinquished guardianship many years prior. Case law such as this, among many other examples, provides a solid ground for the possibility that you may be awarded guardianship over your grandchildren.
Other factors that can run in your favor may include any drug or alcohol abuse by the grandchildren’s biological parents as well as any overt neglect that the grandchildren may have experienced at their guardians’ hands. The truth is that New York child custody law is far to extensive and too complex to even give a moderately accurate overview of the possible legal points that may prove beneficial to a case where grandparents are seeking custody of their grandchildren. As usual, the best thing that you could possibly do is call our law offices and consult with one of our dedicated and skilled lawyers who specialize in the area of child custody cases.
In New York, there are two types of custody
In the state of New York, there are two different categories of custody. The first is called physical custody. This simply refers to the fact that the parent with whom the child spends the majority of the time residing will have that relationship codified before the Family Court. The fact that someone may be physically non-custodial does not mean that they will not be able to visit with the child, nor does it mean that the child will not be able to reside at their home some portion of the time.
In fact, in almost all cases, the non-custodial parent is awarded visitation rights that may include the child living at the non-custodial parent’s home a number of days each month.
The other type of custody is called legal custody. This refers to the parent’s ability to participate in decisions that are crucial to the child’s well being. These decisions may include but are not limited to matters of religion, education and healthcare. Even if a parent is denied legal custody or joint legal custody, they will still have recourse to object to life-altering decisions before the Family Court.
New York Grandparent’s Rights Lawyers
In New York, guidelines and provisions that regard grandparent visitation are brief when compared to other states. The provisions are vague and the language is more legalistic than other states. Because grandparent’s rights in New York are so vague, it is imperative to seek guidance from a skilled family law attorney.
An individual who researches grandparents visitation rights in New York will notice a paradox. Many times, one attorney will claim New York awards grandparent visitation more than other states, and one attorney will claim that New York is among the the strictest states in regards to grandparent’s visitation rights.
In New York, grandparents must have standing grounds to sue for visitation rights. The law in New York states there are only two instances where grandparents may have legal standing. The first is a clear-cut and states a grandparent may be allowed visitation rights if one or both parents of the child have died. The other situation must prove visitation will be in the best interest of the child.
Grandparents are able to seek visitation rights when there are extraordinary circumstances that exist. One circumstance may include times when custody is disrupted. This would occur when parents voluntarily gave control and care of the child to the grandparents, and the grandparents cared from the child longer than 24 months. However, the court may find extraordinary circumstances that are valid even when the child lived with the grandparents for less than 24 months.
There are no other extraordinary circumstances mentioned in the law, but there are instances where the court will grant visitation to grandparents when parents are guilty of abuse or neglect.
With every state, visitation must be in the best interest of the child. However, New York does is not specific on how the best interest of the child is determined. Although there are factors that are included in other state laws that are not present in New York laws, it is assumed that the court recognizes the same factors when determining the best interests of the child.
If a grandparent wants to ask for visitation rights, they must provide a burden of proof, which is the responsibility to provide valid evidence. When one or both parents die, the visitation rights are automatic. If the child’s parents are living, then burden of proof must be provided.
With grandparents rights, judges will carefully consider the circumstances because visitation may go against parental preferences. The court will look at the child’s family structure and see if there is animosity between grandparents and parents of the child. When a grandparent establishes legal ground for requesting visitation rights, the following will be considered:
- The age of the child
- The wants of the child
- Physical and mental health of parents, grandparents, and children
- Past relationships
In addition, the court will also assign a child an attorney to represent the child’s best interest and speak on behalf of the child in court. When a grandparent files a petition, he or she will explain a proposed schedule for visitation (court-ordered time). Once a request has been filed, the parents will be notified of the request with a visitation order. There are instances when grandparents may want more time with their grandchildren or parents are preventing them from seeing the children, so grandparents can ask the court to modify the visitation order or enforce it if needed.
Grandparents rights in New York are complex, and it could be difficult for some to maintain their current schedules while filing for a visitation request. A reputable family law attorney can provide assistance by guiding grandparents through the process. If you are a grandparent and want to request for visitation, contact a New York grandparents rights lawyer today.