Your New York Child Custody Case: The Basics

Breaking up with your ex was supposed to stop the constant bickering, but now she wants your son Timmy to live with her full time in SoHo. You really enjoyed spending lazy afternoons in Central Park, and Tim was quickly becoming a huge Yankees fan, but now your ex wants to tear that all away from you? It may be time to learn more about New York City child custody cases.

Custody Defined

Courts split the legal term “custody” into two categories: legal and physical. Legal custody is the right and responsibility to make important decisions for a child, while physical (or “residential”) custody refers to where a child lives. These two types of custody do not need to match; for example, a child may live solely with one parent, but the other parent can give input on important life decisions.

The court may order joint custody if the judge wants the child to share time with both parents. In this situation, the parent in physical control of the child may make day-to-day decisions, but both parents must make major decisions, such as those dealing with the child’s education, health and religion.

How Does the Judge Decide Who Gets Custody?

The judge will make the custody decision entirely on one question: what is in the best interests of the child. Contrary to popular belief, New York law does not favor mothers over fathers. Both have an equal opportunity to prove that having custody is in the child’s best interests. Courts generally favor whoever is the child’s “primary caregiver,” but also weigh many other factors, including but not limited to:

• the parenting skills of each parent;
• the parents’ ability to provide for the child's special needs, if any;
• the mental and physical health of the parents;
• whether there has been domestic violence in the family;
• the work schedules and child care plans of each parent;
• the child's relationships with brothers, sisters, and members of the rest of the family;
• what the child wants, depending on the age of the child; and
• each parent's ability to cooperate with the other parent and to encourage a relationship with the other parent, when it is safe to do so.

Children cannot make the custody decision by themselves until they turn 18 years old, though of course their wishes will be considered, along with the other factors. Domestic violence will be considered, whether the abuse occurred in front of the child or not, and does not necessarily need to by physical abuse to be significant.

Generally, New York judges rely on a report prepared in advance by a Forensic Evaluator. The Evaluator is usually a psychiatrist or social worker who will talk to the family members and other mental health professionals who have worked with the family to determine what’s in the child’s best interest.

Visitation Rights

Even if the other parent was granted sole custody, you can probably arrange a visitation schedule to spend time with your child because New York courts generally want children to have a relationship with both parents. Note that visitation is not only for parents, but also brothers, sisters, and even grandparents.

If there is no physical or emotion danger to the child, the judge will probably allow the visits to be unsupervised. If there are serious concerns about a parent's ability to act properly with the child or where there has been domestic violence, the judge may order the visits to be supervised. If the parent-child relationship has been frayed, the judge may alternatively order therapeutic supervised visits, where a mental health professional is present to improve the parenting skills of the parent.

Depending on the relationship between the parents, the judge could also order a neutral place of exchange, for example the police station or the child’s school. If there are ongoing concerns or constant bickering between the parents, the transition may be supervised by a neutral third party.

Can Grandparents Win Custody?

It is not easy for relatives to be granted custody over parents, but it is possible. Grandparents, aunts, uncles, and other relatives who want legal custody have to show the court that both parents are not fit to care for the child. For example if the parents have abandoned, neglected, or abused the child, a qualified relative may be awarded custody.

How Can I Modify a Custody Order?

You can petition the court to alter the custody or visitation order at any time. Fortunately, this is pretty easy because the New York court system has provided this free program that will guide one through the steps to creating a petition to modify an order. When finished, one can take the completed petition down to the nearest NYC courthouse for filing.

My Ex Won’t Follow the Visitation Schedule

Although it is best for parents to remain cordial and cooperate for the benefit of their children, it is not unusual for difficulties to arise with the scheduling and maintenance of custody or visitation. In these circumstances, the best course of action is to file an Enforcement Petition at your local courthouse. Once again, New York courts have provided a different free program for creating an enforcement petition.

Can’t We Just Avoid Court?

In fact, NYC courts heavily favor settling disputes out-of-court through informal agreements or mediation. Mediation is not mandatory in a child custody setting, but is often a better idea than prolonged litigation. Most importantly, a mediator does not make any decisions for parent, but rather, listens to a family’s needs and tries to craft a parenting plan that will work for them. If a family reaches an agreement, it is sent back to court and if the judge agrees, the agreement becomes a court order.

For more info read through this thorough guide to New York custody law, or find more general information in FindLaw’s child custody section. Last, but not least, if you need help with a particular case, you may want to contact a local child custody attorney.