If you are involved in a divorce, paternity, or post-divorce case in which custody is an issue, you must understand your essential rights. You must also understand the basic parameters of New York Custody Law. Finally, you must be in a position to fully protect your legal rights and interests in a custody proceeding.
Retaining Appropriate Legal Representation
The stark reality is that New York custody law, and associated court processes, are highly complicated. You best protect your legal interests by retaining the professional services if a skilled, experienced NY custody lawyer.
The first step to take in retaining legal representation is scheduling an initial appointment with an NY custody lawyer. During an initial consultation, legal counsel will provide you with an evaluation of your case. In addition, an attorney will discuss the essentials of custody law in the state of New York. A lawyer will also provide detailed answers to your questions. As a matter of practice, an NY custody lawyer usually charges no fee for an initial appointment with a prospective client.
New York Custody Law
New York statutes establish what technically is known as the legal standard for establishing or changing custody in a divorce, paternity, or post-divorce matter. The state utilizes what is known as the best interests of the child standard in determining custody of a minor child.
The standard mandates that decisions regarding custody of a child are to made with a focus on what is in the best interests of the child. In determining what is in the best interests of a child, the court considers a number of factors.
These factors include an examination of the overall emotional, mental, and physical health of the parties. The factors include a consideration of which parent traditionally has provided primary care for a minor child. The court considers the residential status of each parent. The age of the child can be a factor.
The wishes of the child are not determinative of which parent is designated as the primary custodian of a child. Depending on the age, and maturity level, of a child, the court can use a child’s preferences as one consideration in determining what is in the best interests of that minor.
Legal and Physical Custody in the State of New York
In the state of New York, there are two general types of custody. Legal custody is the right of a parent to make major life decisions on behalf of a child. Major life decisions include those associated with education, religion, and medical care.
Physical custody is the second type. Physical custody involves where the child will reside. Issues surrounding parenting time or visitation are associated with those decisions made in regard to physical custody of a minor child.
Child Support and Child Custody
Although the non-custodial parent is likely to be obliged to pay child support, the award of child support and child custody are otherwise separate issues. For example, if the non-custodial parent fails to make appropriate child support payments, the custodial parent cannot automatically block the other party from having parenting time with the child. A court ordered must be obtained before visitation can be interrupted.
Most people who go to court do have the right to represent themselves during the trial if unhappy with a lawyer. You will need to terminate your current divorce attorney first. Although that can be simple, some problems might arise depending on your exact situation. Here is what you need to understand about firing your attorney and representing yourself in court.
Firing a Lawyer
The first point to understand is that attorneys and clients are bound by a simple contract that is largely like any other business agreement. This means that you can usually fire an attorney at nearly any time you see fit. You often do not even have to provide a sound reason. It is even possible to fire your lawyer after a trial has started or just a couple of days after hiring the attorney. You can then let the court know that you wish to represent yourself as what is called a per se litigant.
How Judges Can Interfere
There are some exceptions to the rule that you can terminate your lawyer at any time and represent yourself. It is possible that the judge overseeing a court case could interfere. This happens only in rare and specific cases. A judge might decide that firing the lawyer close to the first day of trial could unnecessarily delay the case. Some judges will take action during complicated cases because of the perception that the litigant will not get a fair trial. It depends on the circumstances of the case and the judge whether this will happen.
Although you normally have the right to fire your lawyer, you might still face some serious financial and legal consequences afterwards. The agreement that you signed with your lawyer might list fees or other penalties for firing the attorney. The lawyer will still be entitled to full payment for all services rendered to you up until the termination date. You might have difficulty getting the paperwork related to your case leaving you unable to prove your points or defend yourself. It is important to carefully check the terms of your contract before firing your lawyer.
Reasons to Fire a Lawyer
There are several valid reasons to fire a lawyer. The attorney might stop communicating with you. This can leave you in a position where you cannot effectively work through your case or where you have no idea what is happening. Another reason is unprofessional behavior. This means your attorney is not prepared for court or seems to be wasting your time intentionally. You might have a deep disagreement about how to proceed with the case. That can hurt your chances of winning. A final reason is if your attorney does not seem to understand the facts of your case. That is a situation where firing the attorney might be necessary so that you can represent yourself.
Arguments against Representing Yourself
It is important to understand some of the pitfalls of representing yourself in court. You could be hit with complicated motions and other legal tactics that you will have no idea how to handle. You might not be able to effectively use the law to prove your evidence or defend against accusations. A lack of knowledge about how the courts work could result in missed filing deadlines and other mistakes that hurt your case. You must fully understand exactly what you are getting into if you decide to represent yourself in a court of law.
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