Child custody cases in the state of New York are all handled by the Family Court system. This is a unique and often challenging area of the law that relies far more heavily on case law and the subjective interpretation of judges than other areas. Because a good child custody lawyer will have both the experience and deep knowledge of relevant precedential cases, the value that can be added to your efforts to seek child custody by the right attorney can be game-changing.
In the Family Courts, the statutory laws, such as the Domestic Relations Laws, that govern the proceedings are unusually sparse. This means that a good lawyer will be intimately familiar with the case laws that have set the body of precedents that guide the outcomes of Family Court proceedings. The ability to harness this knowledge and apply it on behalf of a client so that their objectives can be achieved is a skill only won by participating in hundreds of cases. For this reason, you want a lawyer that specializes in Family Court law, in general, and child custody cases, in particular.
In child custody cases, every detail counts
The main way in which child custody cases differ from all other areas of the law is that the court is, rather than attempting to establish the facts of past events, as in a criminal trial, attempting to establish the likelihood of future actions by one or more of the parties to the case. This means that the ways in which Family Court judges arrive at their decisions in child custody cases are dramatically different from the processes used in criminal or civil trials.
For example, in child custody hearings, the forensic evaluator, a state-employed investigator who often meets with the child, parents and acquaintances and even goes to the family domicile to observe the natural interactions between parent and child, can hold tremendous sway over the outcome of the case. A good report from the forensic evaluator can easily make the difference between custody being granted or not. And a bad report will often result in the judge denying custody to the parent who was the subject of the negative report.
Another area that can have a large impact on child custody proceedings is the introduction by a paid psychologist or other expert witness of past patterns of behavior of one of the parents. One of the worst possible things that can happen in family court is for a credible witness to testify that they believe the parent seeking custody will pose a serious risk of future neglect or abuse. Although these witnesses are supposed to be impartial and objective, a clever lawyer for the opposing side can easily orchestrate such testimony, which can prove devastating. This is another area in which an expert attorney can help prevent the hearings taking a turn for the worse. Carefully controlling the flow of evidence and testimony is one of the things that a good child custody lawyer is expert at doing.
But not all moves in a child custody hearing need to be defensive in nature. A good lawyer can help uncover and use to your advantage any defects or faults that may exist with the opposing parent. For example, any episodes of serious mental illness or drug and alcohol dependence can play a major role in determining the outcome of hearings.
Likewise, any behavior, almost no matter how small, that indicates a risk for abuse or neglect on the part of the opposing parent can be turned to your decisive advantage. These are all areas in which a good lawyer can raise doubt and, ultimately, win custody cases.
Could I Lose Custody by Giving Guardianship to the Grandmother?
There are many reasons why a person might seek to give a grandmother guardianship of a child. Considering that so many Americans live paycheck-to-paycheck, it is often a struggle to pay bills or put food on the table. As a result, a parent might try to do what is in the best interest of a child by seeking to place him or her within the care a grandmother on a temporary basis. Although temporary guardianship might seem like the best solution, there are a few things to know before you make that decision.
Understanding the Definition of Guardianship
Guardianship occurs when a child is placed with a person that is not a parent. As such, the guardian receives legal custody of the child. While the child is under the care of the guardian, that person can make any and all decision on the child’s behalf. In fact, that person is legally bound to do so, just as a parent is required to do for a child. Parents are sometimes hurt and surprised when a guardian suddenly refuses to let them see their child, which is also within the guardian’s legal means.
If you find yourself in a situation where a grandmother who is acting as guardian of your child will not allow you visitation, you might be wondering if you can lose custody. Keep in mind that you have temporarily handed custody of your child over to the grandmother. However, that does not mean that it has to be a permanent outcome.
Understanding Different Types of Guardianship Available
Keep in mind that guardianship, in some instances, may last until the child becomes an adult. A court may terminate the guardianship and pass the responsibility to someone else if necessary. The type of guardianship a grandmother holds over a child can help you figure out what you need to do in order to request custody be returned to you.
- Guardianship of the Child: If a grandmother receives guardianship of the child, or guardianship of the person, it means that she is responsible for the child’s well-being. The person acting as the child’s guardian has the right to make decision regarding the child’s personal and medical care. A guardian has every legal right to determine where the child attends school, where he or she will live, and decision regarding healthcare.
- Guardianship of Estate: A person who has guardianship of an estate is able to make important financial decisions for a child. If the child has any assets, the guardian will need permission from the court to sell or use any of those assets despite having guardianship.
- Guardianship of Estate and Child: If a person has guardianship of a child and the estate, it means that person has the right to make decisions regarding the child’s medical and personal well-being, as well as the child’s finances.
Familiarizing yourself with the different types of guardianship can help you avoid any rash decision made in error. Also, you should keep in mind that there are alternatives to guardianship you can seek to retain custody of your child.
Alternative Guardianship Options to Consider
You may find alternative options more suited to your situation, particularly if you wish to retain custody of your child. Alternative options include:
- Temporary Guardianship: If you are currently having financial issues and unable to care for your child, you may consider temporary guardianship instead. Temporary guardianship means that you voluntarily provide a person guardianship of your child for a period of six months. You do not need court involvement for this agreement, and once the six-month period passes, the guardianship will expire, allowing you to retain custody.
- Power of Attorney: When you grant someone power of attorney, you are allowing them to make important decisions on your behalf. For instance, if you grant a grandmother power of attorney of your child, you will retain custody, but the grandmother will have the right to make important decisions regarding your child.
Fortunately, you can terminate the appointed power of attorney at any time you seek.
In the Event of Guardianship
If you have already provided a grandmother with guardianship rights over your child and you have difficulty acquiring custody back, you need to speak with a qualified lawyer. An attorney can assist you in maintaining your custodial rights. Keep in mind that courts typically do not terminate custodial rights unless a parent proves him or herself unfit for the child’s well-being.
If you have not yet provided guardianship of your child to someone, you should still speak with an attorney. A legal professional can walk you through your options to ensure that you do not lose custody of your child.
If you’re facing a divorce in New York City and anywhere in the greater New York area, you almost certainly have questions about child custody and child support. Parents often have strong opinions about how child custody and child support should be decided in their divorce case. They rightfully want to know how much say they have in the process of making decisions for their children.
Can custody issues be decided without going to court?
Yes, there are several ways that a custody issue can be decided without going to court. If the parents are in agreement, the court almost always agrees with the decision of the parents. When the parents are involved in a legal dispute, the court oversees the case. However, even though the court can review the parents’ decision for the best interests of the children, if the parents are in agreement, the court almost always confirms that the decision of the parents is in the best interests of the children.
Can we agree on custody and parenting time issues without court?
Even in cases where you don’t think the other parent isn’t open to reaching an agreement, you may be surprised to find that you can actually find common ground and resolve the case without court. There are things that you can do to negotiate your case even if your case issues seem hopeless or the other parent doesn’t seem open to negotiating. You can negotiate directly with the other parent with or without the help of an experienced child custody attorney in New York. Negotiations may be best on the phone through the respective attorneys, or it may be best to negotiate through written discussions. There are also formal negotiation processes like mediation that can help you reach an agreement in your child custody issue.
Experienced attorneys for custody issues can help you determine what your rights are under New York law and whether you should accept a settlement offer that the other side offers. Negotiations often work best when both parties have a realistic idea of what might happen in the case if they leave it to a judge to hear the case. Negotiated agreements often allow the parties to be more creative in their arrangements than the court might order.
How can we agree on child custody and support issues in New York without going to court?
If you agree with the other parent on a child issue that’s subject to the court’s jurisdiction, how you resolve the matter depends on your stage of the case. If you’re beginning your child custody case for the first time, you need to prepare an order for the judge to sign. Your experienced New York child custody attorneys can help you draft a judgment to present to the court.
If you’re entering your custody order by agreement, both parties sign the agreement. Their signatures indicate to the judge that they agree with the decision. An agreement is called a stipulation of the parties under New York’s civil court rules. You file the agreement with the court, and the judge looks at the agreement. When the court agrees, the judge signs the order, and the order goes into effect.
Making minor changes in child custody issues
Sometimes, the only change that you need to make to your child custody case is minor. When you already have an order in place, you might need to make changes quickly or changes that are temporary. For example, if the non-custodial parent usually exercises parenting time every other weekend, you might want to switch weekends with the other parent in order to accommodate a family event. In that case, you can reach out to the other parent to see if they’re in agreement. If they agree in writing, your mutual written confirmation may be enough evidence for the court to enforce the agreement.
When your intended custody changes amount to a change in custody or they’re permanent changes, it’s best to submit the change to the court for the judge’s signature. A formal court stipulation clears up any questions or gray areas, and it also allows the court to revisit the child support award if it’s appropriate. Our experienced child support attorneys in New York can help you determine if you can resolve your matter by an informal agreement or if you should go back to the court with an order to make it official.
In some cases, you can resolve your custody issues without going to court. It’s not the best outcome in all cases. Our New York child custody attorneys can help you determine what’s best for you and your children in your case.