There are two types of custody in the State of New York. Physical custody refers to the parent who has physical possession of the child. They’re expected to provide the child with direct care. Legal custody refers to which parent has the right to make significant decisions on behalf of the child.
Presumption of Joint Custody in New York
The Family Court in New York doesn’t start any child custody case with the assumption that joint custody is what’s best for a child. You should get a New York City joint custody lawyer so that you can make a well written request for joint custody. You’ll need to demonstrate tot he court why it’s in the best interests of the child to share custody with both parents.
In New York, the case of Trolf v. Trolf brought to light some situations where joint custody might be appropriate. It says that the court might award joint custody where the parents can get along reasonably well. They say to seek out any situations where the parents can be civil with one another and cooperate for the good of the children.
Disagreements between adults in a marriage shouldn’t prevent a qualified parent from having joint custody of their child. It doesn’t matter if the parents are amicable with each other or not. What is important is whether or not they can reasonably cooperate for the good of the children.
This type of custody determines where the child spends most of their time. A parent has primary physical custody when they have the bulk of the time with the child. A parent has joint physical custody when they share parenting time with the other parent equally or almost equally. Even if one parent has primary physical custody, the other parent usually has some parenting time.
When a parent has legal custody, they have the authority to make big decisions for the child. They decide where the child goes to school. They decide if the child should receive certain medical treatment.
When a child is in a parent’s direct care, it’s up to that parent to make the day to day decisions for a child. This includes what a child should eat, what they wear and routine discipline. Bigger decisions about a child’s upbringing are left to the parent with legal custody. If the parents have joint legal custody, they need to agree on these decisions.
No Presumption of Joint Custody
The State of New York has no presumption of joint custody. That is, judges who decide custody cases don’t have to first consider placing the child with both parents equally. That means, if you’re hoping for joint custody, it’s important to work with a NY joint custody lawyer in order to prove your case. The court needs to see the evidence and hear arguments about why joint custody is best for your child.
How Does the Court Decide?
When the court makes a decision about custody, they decide if the parents are going to be able to get along enough to make joint custody work. They also consider if the parents live close enough to each other in order to split the time effectively while a child goes to school or participates in other community activities. The court considers if there are any big reasons that one parent should have the majority of the parenting time such as domestic violence or a history of substance abuse.
Who Is Eligible to Petition for Custody of a Child in New York?
The mother and legal father of a child are both eligible to petition for custody of their child or children. “Legal father” is the term for a man who has either
All of these documents establishes paternity. In other words, they verify that the man is the legal father of the child.
For children born under wedlock, there is a legal presumption that the husband of the child’s birth mother is also the child’s father.
In situations where a child is conceived through artificial insemination or in-vitro fertilization with the spouse’s written agreement, that paternity presumption also applies.
Because of a case decided during 2016, in some circumstances the domestic partner of the child’s birth or adoptive parent is able to establish parenting rights. This is true even if they were not married to the parent listed on the child’s birth certificate and never adopted the child.
Under whatever circumstances, neither of the parents has more of a right to custody than the other. If no custody order exists, either parent can keep the child.
Friends oft he family and other relatives of the child could also petition the court for custody. To do so, they must demonstrate that there are “extraordinary circumstances” that would give them the right to request custody in preference to either of the natural parents. So called “extraordinary circumstances” can include situations such as surrender by the parent, persistent neglect, abandonment, unfitness, or disruption of custody over an extended period. If they are able to demonstrate extraordinary circumstances, then they need to also demonstrate that it is in the best interest of the child for the non-parent to be awarded custody.
Who Can Be Allowed Visitation of a Child in New York?
Either one of a child’s parents, their siblings and half-siblings, and thier grandparents are allowed to petition for visitation. The court will come to a ruling as to whether visitation with the petitioner is in the child’s best interest. A child’s parent is entitled to frequent and meaningful visitation with them, unless it is proven in family court that it would somehow be harmful to the child.
For the most part, the courts honor joint custody schedules if the parents are able to agree. The court can disagree if they feel it’s not in the child’s best interests, but this is rare. This means that you can work with your NY joint custody lawyer in order to approach the other parent about creating a joint custody agreement. Although this might seem impossible, your NY joint custody attorneys are trained professionals. We have the skill and experience to help you both prepare your case for court and approach the other side for a non-trial resolution.
Work With Us
We know that it’s important for a child to have a strong relationship with both of their parents. That’s why we take pride in helping good parents fight for joint custody. Every case is unique, but it’s important to us to help you advocate for your child’s best interests to the fullest extent of New York law. Contact us today, and we can begin working on your case.
What can I take if I move out before our divorce is finalized?
Typically, until the divorce is finalized – you shouldn’t be moving anything out of the house which has substantial value. If it has substantial value – enough that your spouse would want it, then you shouldn’t take it out. If you do, then the spouse could say you’re acting unfairly, and unethically – and that means the judge can hold it against you.
Typically, we tell spouses NOT to touch ANY assets. For example, you shouldn’t touch the bank accounts, or any other financial assets. Also, you shouldn’t take ownership of assets like cars, etc, and act like they belong to you. Until the court makes a decision, or until you have a firm agreement in place with your spouse which is approved — the property belongs to you both, and thus – the property CANNOT be taken exclusively.
If you decide to move out before the divorce is finalized, you should only take assets that are yours personally. For example, your clothing, your personal belongings that were clearly established as “yours.” You shouldn’t touch “joint” or “community” property – which means things like cars, that were paid for by your spouse, etc.
While it’s tempting to leave the house before the divorce is finalized – it’s not a good idea. You should speak to your attorney before even making the decision to leave the house. In most situations, leaving the home can hurt your case. There are several things to consider before you pack up, and move out. In most marriages, the home is the largest asset. As a result, the home is part of your marital estate and the value should be split. If you name is on the deed then you’re ownership of the house is safe. But if you leave the home prematurely, and your name isn’t on the deed – it can lead to financial complications. As a result, it’s not recommended that you move out.
If you are the primary earner for your household – moving out of the house doesn’t mean you can stop paying the bills. In some states, there is a”status quo order,” which is instituted. This requires the party to continue paying the marital bills as was done before the divorce. If you leave the house – this can mean you’re now paying 2 sets of bills. In addition, you now have to be legal fees for the divorce, which means it might make sense to just stay in the house!
Additionally, problems can get worse if children are involved. When you are living in the same house, you have interactions with your kids. If you move away, you have less time to spend with them. It’s extremely important you have an agreement – which is court ordered, in order to establish a placement schedule for the children. Without an official schedule, you could wind up in a situation where the kids aren’t in your control at all.
In most cases, it’s safest to stay in the marital home. You won’t lose access to your possessions, or assets, and you have nothing to lose.
If you have more questions, speak to one of our NY divorce lawyers today.
Domestic violence 100% is a serious issue, and can have a significant impact on future custody issues. Allegations of domestic violence are VERY relevant in child custody proceedings. If there is a history of violence directed towards, or in the presence of, minor children – this can be grounds for taking custody away from your spouse. Many states have “domestic violence presumption,” statutes. The legal presumption based on these laws is that an abuser’s actions and future actions would be harmful to the child. As a result, the custody of the child should be given to the spouse who isn’t abusive. Depending on where you live, the domestic violence history could result in either no access, or limited – supervised – access to the children.
Once a presumption has been established, it will have a permanent impact on child custody arrangements – regardless of where you end up in your divorce.
In states that have the legal presumption statute, they also have provisions to rebut the presumption. If your spouse has a history of violence, then you should be aware of the fact he/she can rebut the presumption by presenting evidence. The spouse will have an opportunity to present evidence he/she has changed his/her pattern of domestic violence, and isn’t a threat to the safety of the child. This can be in the form of things like: completing anger management courses, completing drug/alcohol treatment programs, showing negative tests for drugs, and participating in parent education courses, etc.
If your state doesn’t have a domestic violence presumption statute, then the presence of a domestic violence history could still have an impact on your child’s final custody. Many judges are VERY reluctant to give custody to parents who have a history of domestic violence. The history of domestic violence creates a “moral presumption,” in the judge’s mind – that the abuser shouldn’t be the primary care-giver of the child/children. Even if the violence wasn’t directed towards the child – the mere fact it occurs in the presence of the child is enough. Courts will exercise extreme caution, as a result.
Domestic violence can also be used against you. If you are separated from your spouse, and move in with a boyfriend/girlfriend, who is violent – infront of the children; then your spouse can bring this up in court – and take the children away from you. If your ex-spouse becomes aware of the fact you’re letting your boyfriend remain in the home, and engage in a violent manner infront of the children – he can ask the judge to take the children away from you. You, in essence, become guilty of the same thing as your spouse.
Regardless of whether your state has legal domestic violence statutes, a history/pattern of domestic violence will 100% affect a child’s custody. If your spouse can confirm a history of domestic violence by you, it will create a strong presumption against an abusive parent. If this happens, it’s important you hire a NYC family law attorney who can help you. You may even need a criminal attorney to help you fight the issue.
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