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If you face a divorce, paternity, or post-divorce matter that involves custody issues, including those centering on joint custody, you need to have a basic familiarity with New York law. A Staten Island joint custody lawyer can provide you not only the information you desire, but the representation you need to best protect your legal rights and interests.
Joint Custody Defined
Joint custody represents a custodial arrangement in which both parents share in the upbringing of a minor child. Joint custody in New York is generally contrasted with sole custody. Under a sole custody arrangement, only one parent plays a primary role in the upbringing of a minor child.
There is No Presumption of Joint Custody
Staten Island Family Court doesn’t begin a case from any assumption that joint custody is what’s best for a child. On the contrary, it is in your best interest to work with a Staten Island joint custody attorney to file a request for joint custody of your children. You will need to explain why you believe it’s in the best interests of the child to be under the shared custody of both parents.
Some situations where joint custody might be appropriate were documented in the New York case of Trolf v. Trolf. The court can grant joint custody to parents who can get along reasonably well. They say that the best situations are ones where the parents can be friendly with one another and work together for the good of the children.
Points of difference in a marriage shouldn’t prevent a qualified mother or father from having joint custody of their children. It doesn’t matter if the parents are not friends with each other. What makes the difference is whether they can reasonably cooperate for the sake of the children.
Joint Legal Custody
According to New York law, legal custody is the ability of a parent to make primary life decisions for a minor child. These decisions include such matters as religion, education, and medical matters. Joint legal custody exists when both parents share in making primary life decisions for a minor child.
Joint Physical Custody
Pursuant to New York law, physical custody is the right of a parent to provided a residence for a minor child. Joint legal custody is a situation in which both parents provide a residence for a minor child a substantial amount of time.
Division of Custody
New York law permits custodial arrangements to be divided in a number of different ways. For example, one parent might have sole physical custody of a child and yet share legal custody with another parent. In another scenario, both parents may jointly have legal and physical custody of a child. A situation could even exit when one parent has both legal and physical custody of a child and the other parent has neither.
Establishing a Joint Custody Agreement
Parties to a divorce, or paternity, case have the ability to negotiate a custody agreement. In fact, courts usually encourage parents to attempt to negotiate an agreement between themselves when it comes to issues like custody of a minor child.
Even when parties negotiate a custody arrangement, that agreement must still be approved by the court. The court must make sure that the custody agreement meets the legal standard for such legal and physical custody in the state of New York.
The Legal Standard for Custody
New York law outlines the standard to be utilized in establishing the custody of a minor child. It covers both legal and physical custody. It applies to a situation in which joint custody is being considered.
In New York, a custody arrangement must be determined to be in the best interests of the child. In determining whether the arrangement is in the best interests of a child, a court will look at a variety of different factors.
Considerations include the health of the parties, the residential situation of the parties, and a look at which parent historically has been the primary caretaker of the child. Other factors can also come into play depending on the unique situations of a case.
Who Can Be Awarded Visitation in New York?
Either of the child’s parents, siblings (including half-siblings), and grandparents are permitted to petition for visitation. The judge in family court will rule on whether visitation with the petitioner is in the child’s best interest. In general, a child’s parent is entitled to frequent and meaningful visitation with them. If, however, it is proven in court that the visiting parent would be harmful to the child, then a judge will limit that visitation.
What If the Other Parent Violates our Custody and Visitation Order?
If there is already custody order in place, and the noncustodial parent decides not to return your child to you after a visit, you should call the police for assistance in getting your child back. In more serious scenarios, the other parent can be arrested.
Also, in such scenarios, you have the right to file a violation petition in Family Court to enforce provisions surrounding custody or to enforce provisions about your visits.
Parents and custodians can retain attorneys to represent them in violation petition cases.
In the event that the noncustodial parent refuses to visit their child, the court does not have the power to force him or her to visit. Nonetheless, that parent’s visitation award could be decreased and will not be increased until he or she resumes visits with their child consistently.
How Does the Court Determine Joint Custody?
When the court makes a determination about custody, they make a decision as to whether if the parents are going to be able to be amicable enough to make joint custody work. They also consider if the parents reside in close enough proximity to each other in order to split the time effectively even when the child goes to school or participates in other local activities. The court needs to consider if there are any major reasons that one parent should have the majority of the parenting time, such as domestic violence or a history of substance abuse
Retain a Staten Island Joint Custody Lawyer
Your first step in obtaining legal representation is arranging an initial consultation with an experienced Staten Island joint custody lawyer. During this preliminary meeting with a lawyer, you obtain an evaluation of your situation and answers to any questions that you might have about joint custody and other issues. There typically is no fee charged for an initial consultation with a Staten Island joint custody lawyer.