Child custody and visitation issues represent some of the most contentious matters in New York divorce cases. In addition, child custody and visitation consistently represent some of the most common types of issues that arise following the conclusion of a divorce case.
In the state of New York, visitation technically is now known as parenting time. The state of New York has adopted the concept of parenting time in recent years to underscore the importance of both parents in maintaining meaningful relationships with a child. Parenting time represents the ideal that a non-custodial parent should never be relegated to the position of becoming a mere visitor in the life of his or her child.
The New York Visitation Standard
The state of New York utilizes what is known as the best interests of a child standard when making decisions regarding custody and visitation. Indeed, this is the custody and visitation standard used nearly everywhere in the United States.
In applying the best interests of a child standard in making a visitation decision, a court considers a variety of factors. There is not a one-size fits all approach to determining a parenting time arrangement in New York.
Reasonable and Regular Visitation
The New York parenting time law mandates that a non-custodial parent should have reasonable and regular visitation with his or her child. There are some general guidelines utilized to assist a court, and parents, in developing a meaningful and appropriate parenting time schedule.
One of the most common types of post-divorce legal matters are those involving visitation or parenting time. There are two basic types of situations in which a post-divorce visitation case arises. First, there are situations in which a non-custodial parent interferes or otherwise fails to comply with an existing parenting time order. Second, there are cases in which the non-custodial parent fails to follow an existing visitation order. This situation oftentimes involves a non-custodial parent failing to return a child after a scheduled visitation.
Altering Visitation Order
Circumstances may change that warrant an alteration of an existing visitation order. There are certain legal standards which must be met in order for a visitation order to be changed in New York. At the heart of changing an existing parenting time decree is a demonstration that there has been a material change of circumstances warranting a change in an existing visitation order.
Parents can mutually agree to change a visitation order. However, the court will still need to evaluate the change to make certain that the alteration is in the best interests of a child.
Retain a Skilled, Experienced New York Visitation Lawyer
Visitation disputes are some of the most emotionally charged, and legally complicated, cases in the New York court system. In addition,, the judicial system itself is complex. These realities underscore the need for a person facing a visitation of parenting time case to retain an experienced, tenacious New York visitation lawyer.
The first step in retaining legal representation in a visitation case is scheduling an initial consultation. An initial consultation provides an attorney the opportunity to evaluate your situation. In addition, legal counsel will provide answers to your questions. Generally speaking, there is no attorney fee charged for an initial consultation with a New York visitation lawyer.
Will a restraining order help if he refuses to leave?
Divorce brings out the worst in people. Spouses, in divorce, will typically incur emotional and financial hardships. Sometimes, a retraining order can be the solution to force a spouse to leave. A restraining order is an order that prohibits someone from taking certain actions. In the context of a divorce, separation, it can compel a spouse to leave. If you’re concerned about forcing a spouse to leave, a TRO can be crucial to maintaining the status and pleasures of life you’re used to. All restraining orders have an expiration date. The point of a restraining order is to force a spouse to leave, or compel a certain action – for a period of time. If you are a victim of a domestic violence, a TRO is a great way to address divorce issues you may be facing. In the context of a divorce, a court will compel the offending spouse to stay away from the other spouse.
With a restraining order, the court will force the offending spouse to stay away from the other spouse, and possibly the children, until there’s a formal hearing. A restraining order can remain in place, even after your divorce has concluded. If your restraining order is the result of a domestic violence – then the court order can force the alleged offending spouse to stay away. A court will call a court hearing, and at the hearing, the court will decide if domestic violence has occurred – and if a restraining order is deemed appropriate based on the circumstances.
If you’re looking for a restraining order for reasons other than domestic violence, then you need to make a request in conjunction with filing for a divorce petition. If you’re worried about your spouse emptying all of your assets, then a court TRO can be help. Some states have a proactive approach, when it comes to enforcing a TRO. They use a Automatic Temporary Restraining Order, which becomes effective automatically as soon as the divorce petition is filed. It binds the spouse filing the petition immediately, and as soon as the other spouse receives the divorce papers. It binds the spouses, so there are no potential problems, such as one spouse emptying the assets etc.
Many states have variations of the automatic restraining order. In some states, no such provision exists. If your state doesn’t have such a provision, your attorney will have to request the court to file a restraining order which addresses your specific requests. Even if you don’t think your spouse will do something harmful like this, it helps to have a restraining order in place.
Couples who choose to divorce must make choices about more than how to divide their assets. A priority is creating a reasonable custody and visitation plan that will serve the best interests of the children. In the state of New York, the family courts follow laws and regulations designed to protect those interests and provide the children a chance to have ongoing contact with their parents. If you are considering divorce, here are a few things you should know about the visitation laws in New York.
What is Visitation?
As it relates to child custody, visitation is court-ordered and approved time that allows the non-custodial parent to interact with his or her child. The goal is to ensure that the child continues to have a familial relationship with the non-custodial parent even though the parents are no longer married. While parents develop visitation plans with the aid of legal counsel, the family court must approve the arrangement before the visitation is legally binding.
As a judge will stress, visitation addresses the minimum amount of time the non-custodial parent is allowed access to his or her child. The parents, at their discretion, may agree to more interaction if they believe doing so is in the best interests of the child.
What Laws Form the Basis for Structuring Visitation?
Federal as well as state actions form the basis for structuring visitation plans in New York. The Uniform Child Custody Jurisdiction and Enforcement Act is an example of a federal statute that is supported by the state of New York. This Act is designed to make identification of which state will hold jurisdiction over child custody and visitation matters. This is especially important if the parents choose to live in different states.
On a state level, DOM § 240 provides the basis for structuring a custody plan, including the visitation. The provisions within this code include provisions for determining which parent is in the best position to serve as the custodial parent, the level of financial support the non-custodial parent will offer, and defining the terms and conditions for visitation rights and privileges.
Are Parents the Only Ones Who Can Seek Visitation Rights?
One misconception about custody and visitation rights is that the parents are the only ones who can seek visitation. In New York, it is possible for grandparents to seek custody or at least secure visitation rights. This may occur when the parents seek to prevent grandparents from seeing the children without any grounds recognized by the court. A family lawyer can work with the grandparents to determine if they have a claim the court is likely to recognized and make the proper petition.
Can a Parent Be Denied Visitation or Only Receive Supervised Visitation Rights?
At all times, the family court is interested in doing what is best for the child. That can mean the denial of visitation privileges to a parent or other party seeking visitation rights. Typically, the court will take this action when there is evidence that the child would be harmed in some way by the interaction.
For example, if there is evidence that a non-custodial parent physically or emotionally abused the child, the family court can deny visitation. If the abuse is discovered after a visitation plan is already in place, the court will review a petition to amend the custody and visitation terms.
The court may also lift a ban on visitation under specific circumstances. This means that a non-custodial parent who was denied visitation due to addiction receives proper treatment and remains sober for a reasonable amount of time, the court may grant what is known as supervised visitation rights. This means the parent and child may spend time together under the supervision of a responsible party appointed by the court. If the non-custodial parent continues to remain sober and demonstrates the ability to responsibly care for the child, the supervised visitation may be discontinued and a traditional visitation arrangement implemented.
How a Family Lawyer Can Help
Navigating through the statutes, laws, and court requirements related to visitation rights can be confusing. Seeking help from a family lawyer makes it easier to identify laws and statutes that apply directly to the client’s situation. Even in a situation where the parents are working amicably to arrive at a reasonable visitation schedule, the presence of legal counsel ensures the plan presented to the court is reasonable, in the best interests of the child, and complies with current laws.
If you need help with a custody arrangement, now is the time to seek help from a family lawyer. Doing so will improve the odds for an outcome that is fair, balanced, and right for the child as well as the parents.
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