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If you’re in the middle of a divorce or custody case, you might wonder if joint custody is an option. Although New York doesn’t have any presumption that a child should have joint custody, you can ask the court to consider it and explain why it’s the best option for your child. Our New York City joint custody lawyer team can help you prepare evidence and arguments as you fight for joint custody.
No Presumption of Joint Custody
A New York court doesn’t start a case with the assumption that joint custody is what’s best for a child. Rather, you need to work with a New York City joint custody attorney in order to make a request for joint custody. You’ll need to show why it’s in the best interests of the child to share custody with both parents.
The New York case of Trolf v. Trolf talks about some situations where joint custody might be appropriate. They say that the court might award joint custody where the parents can get along reasonably well. They say to look for situations where the parents can be civil with one another and cooperate for the good of the children.
Even disagreements in a marriage shouldn’t prevent a qualified parent from having joint custody. It doesn’t matter if the parents get along with each other or not. What matters is whether they can reasonably cooperate for the good of the children.
Physical Custody vs Legal Custody
There are two types of custody in New York. These are legal custody and physical custody. If a parent has legal custody, they get to make major decisions about the child’s upbringing. That is, they decide where the child goes to school, whether they receive medical care and their religious training. One parent might have sole legal custody, and parents might share legal custody. If parents share legal custody, they have to agree on major decisions for the child.
Physical custody is who cares for the child. If a parent has the lion’s share of time with the child, they have primary custody. When parents share time with the child more or less equally, they share physical custody. When a child is with a parent, that parent makes routine decisions about the child’s day including their eating, sleeping, discipline and entertainment.
What if I don’t win joint custody?
In the vast majority of cases, both parents have significant parenting time with a child. Even if you don’t have joint custody, chances are you’ll still have significant time with your child. If there are significant concerns, a parent might have parenting time under limited conditions such as orders not to consume alcohol or substances. A parent may have parenting time supervised by a third party if the court feels that it’s best for the children.
Who Is Eligible to Get Custody of a Child in New York?
The mother and legal father of a child can petition for custody. The term “legal father” describes a man who has either signed an Acknowledgement of Paternity, received an Order of Filiation from the court, or is listed as the father on the child’s birth certificate. Each of these documents establishes paternity, that is , they verify that the man is the legal father of the child.
Additionally, there is a legal presumption that the husband of the child’s birth mother is also the child’s father. In cases where a child is conceived through artificial insemination or in-vitro fertilization with the spouse’s written agreement, that presumption also applies.
Pursuant to a new case decided in 2016, in some circumstances the domestic partner of the child’s birth or adoptive parent can establish parenting rights, even if they were not married to the parent listed on the child’s birth certificate and never adopted the child. The former partner might be required to that they and the other parent had agreed to conceive and bring the child up together.
In any event, neither of the parents has a greater right to custody than the other. If there is no custody order in place, either parent can keep the child.
Relatives and friends of the child could also petition the court for custody. First, 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. Extraordinary circumstances include situations such as surrender by the parent, persistent neglect, abandonment, unfitness, or disruption of custody over an extended period of time. If they can demonstrate extraordinary circumstances, then they need to also prove that it is in the best interest of the child for the non-parent to be awarded custody.
Who Can Be Granted Visitation in New York?
Either parent, siblings and half-siblings, and grandparents are allowed to petition for visitation. The court will decide 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 court that it would be harmful to the child.
What If the Other Parent Disobeys the Custody and Visitation Order?
If you have a custody order in place, and the noncustodial parent refuses to return your child to you, you should contact the police for assistance in getting your child back. In more serious situations, the other parent can get arrested.
Additionally, you may file a violation petition in Family Court to enforce provisions about custody or to enforce provisions about your visits.
Parents and custodians can get attorneys to represent them in cases of violation petitions.
If the noncustodial parent refuses to visit their child, the court is not able to force him or her to visit. Nevertheless, that parent’s visitation award might be decreased and will not be increased until he or she visits their child consistently.
How We Can Help
Each day, our team of New York City joint custody attorneys fights for the rights of deserving parents and their children. We know how important it is for you to maintain your relationship with your child. Our team knows how to prepare legal arguments and strategy in order to help you succeed in the New York courts.
When you work with us, expect us to go the extra mile. We contact witnesses, prepare trial briefs and argue your case with enthusiasm. We know how much is on the line. If you have a New York City custody case, we invite you to contact us to see how we might be able to fight for you.