Child Custody and Visitation

For parents, some of the most critical, and potentially most challenging, questions of any divorce or legal separation involve custody and visitation. Who should the children reside with? Will there be a primary caretaker or will both parents be sharing time equally with the children? Will both parents be involved in decision-making, or will one parent alone decide on major issues such as health and education? What will be the father’s rights and what will be the mother’s rights when it comes to visitation? How do I go about getting custody of my children? This can be an emotionally fraught and often complex process, and one in which the parties can benefit immensely from legal representation.

Retaining an effective child custody attorney can help give you ease of mind with the assurance that your parent’s rights will be protected. Ksenia Rudyuk, principal attorney of Rudyuk Law Firm, P.C., is an experienced, Russian-speaking child custody attorney in New York City who will work with you to resolve any issues that arise in relation to custody and visitation proceedings.

“Child custody” refers to a parent’s right to make decisions on behalf of a child and/or to house and care for a child, depending on the type of custody granted. In New York, courts grant custody based on what is deemed to be in the “best interests of the child,” and only until the child is 18 years old. Questions regarding child custody may arise during divorce, annulment, and separation proceedings, adoption, and in the event of parental death.

There are two major types of child custody in New York. Legal custody and physical custody. Where there is no order of custody, both parents automatically share custody (both legal and physical), and to change this one parent can file a petition with the court, often working with an attorney to do so.

Legal custody grants a parent the right to make major decisions about the child’s upbringing, including religion, medical care, and education. If the court grants joint legal custody, both parents will share decision-making rights with regard to the child’s upbringing, regardless of where the child lives. In cases of joint custody, parents would be expected to cooperate and communicate effectively.

When it comes to legal custody, courts will typically attempt to preserve equal rights for divorcing parents. However, the court prioritizes the needs of the child over the desires of the parents, and joint custody is only awarded if it’s deemed to be in the best interests of the child.

In some custody arrangements, one parent will be granted sole legal custody, such as may be the case if the court deems the other parent unfit to make decisions for the child or if making joint decisions is not feasible.

Physical custody (also known as residential custody) grants a parent the right (and obligation) to provide shelter for the child and to make decisions about the actual day-to-day supervision and care of the child.

Parents can share physical custody, in which case the parents can trade off parenting time with the child according to a set schedule and agreement.

Alternatively, the court may give primary physical custody to one of the parents. This parent, known as the custodial parent or primary caretaker, will have physical custody of the child most of the time (more than 50%) and will be responsible for the child’s care the majority (or all) of the time, while the noncustodial parent may have visitation rights.

In New York, neither parent has a greater right to custody – one parent’s rights are equal to the other’s, unless there’s an order or agreement to the contrary – and children can live with either parent. Either the mother or father, or other legal parent, can apply for custody of the child in New York, in their county’s Family Court.

Nonparents, namely other relatives (e.g., grandparents) or someone with a significant connection to the child, may also ask the court for custody of the child. To do so, they must show that there are extraordinary circumstances that justify their request for custody, and that it would be in the best interests of the child for that relative or friend to have custody over a parent. These parties do not have automatic custody rights, and it is rare for a third party to obtain custody over a parent, but it is possible for a third party to be determined to be the primary caretaker of the child.

Court Must First Have Jurisdiction – The first thing to do when seeking to get child custody in New York is to make sure that New York State has jurisdiction. Before the court can decide custody of a child, it will first verify it has jurisdiction to even hear the case. A New York court has jurisdiction if: a) the child has lived in New York for the past six months (or is less than six months old and has lived in New York their entire life), b) the previous custody order for that child was ordered in New York, or c) the child is in New York because of an emergency that occurred in their home state.

Petition Must Be Filed – When seeking custody of a child in New York, it’s necessary to file a custody petition in Family Court, explaining in the petition why you should have custody of the child. A parent may request custody or visitation when starting divorce or legal separation proceedings in Supreme Court. (See also: Divorce, Annulment, and Legal Separation in New York.) If the divorce case is already in process, any pending or new petitions filed in Family Court can be transferred to the Supreme Court and the family court case can get reconciled with the divorce proceedings. This petition is important, and having a knowledgeable family law attorney draft and submit it on your behalf can offer you peace of mind.

Summons Must be Served – Unless otherwise ordered by the court, custody papers must be served on the other parent (or if filed by a nonparent, on the custodial parent or parents). These papers must be hand delivered by someone other than the petitioner.

Court Appearance Will Be Necessary – In most custody cases in New York, the child will be assigned an Attorney for the Child, who will meet with the child and represent them in court, advising the court of the child’s wishes. The Attorney for the Child works to pursue the child’s best interests independently of the parents and their counsel, although sometimes the Attorney for the Child will meet with the parents as well.

Custody Can Be Negotiated and Settled by the Parties – During custody proceedings, the parties will often attempt to come up with a voluntary agreement, working out the specific details for custody and visitation together. If they can settle on a voluntary agreement, the agreement can be presented to the court and an order may be issued without the need for a formal hearing.

Trial Is Sometimes Necessary – If no agreement can be reached on child custody, an evidentiary hearing will be scheduled for the matter to be determined by the court, as part of a divorce action in Supreme Court if the case is not yet resolved, or in Family Court. During the process, the court can issue temporary orders for custody and visitation prior to the final order being entered. The parties may still be able to reach a custody and visitation agreement before the trial, even if they were unable to do so initially.

In every custody proceeding in New York, the court’s primary concern is for the child’s best interests. In order to determine child custody, the court will assess the parents’ (or other petitioning caregiver’s) ability to meet the child’s needs, evaluating any factors that may affect one’s ability to care and provide for the child, including:

• Age, health, and finances
• Lifestyle
• Stability
• Emotional bond with the child
• Evidence of domestic violence or drug abuse
• Home environment
• Child’s preference (more likely to be considered if the child is older)

This list is not exhaustive. The court may consider any and all factors that may impact the child’s best interests. To find out how your specific circumstances may impact your New York child custody case, it’s best to consult a child custody attorney in New York.

In New York, custody and visitation are considered separate matters. However, custody and visitation are often determined in the same hearing. (Though a petition for visitation can be filed separately.)

Noncustodial Parent – Typically, the court will try to ensure a child can maintain a relationship with both parents. Thus, when one parent has primary physical custody, the noncustodial parent will typically be able to get “frequent and meaningful” visitation rights, unless it can be shown that granting visitation would be harmful to the child.

Legal Father – If the parents never married, the father does not have custody or visitation rights unless he is otherwise recognized as the legal father, by either: a) having signed an Acknowledgement of Paternity, b) having been granted an Order of Filiation from the court, or c) if he’s named as the father on the birth certificate of the child. The father must first establish his paternity to apply for custody or visitation.

Nonparent – Siblings, half-siblings, and grandparents of the child may petition the court for visitation rights in New York. It is more common for such parties to be granted visitation rights than custody rights in New York, but not guaranteed.

Parents of a Child in Foster Care – A parent who has a child in foster care has visitation rights so long as their parental rights have not been terminated.

Legal parents are entitled to visitation with a child, unless a court determines that it’s not in the child’s best interests.

If parents are unable to agree on a visitation schedule, the parent seeking to establish visitation can file a petition against the custodial parent.

The custodial parent cannot deny or interfere with court-ordered visitation unless it’s believed a visit may endanger the child. Neither can the custodial parent force visitation if a parent refuses to visit the child, although this could lead to the limitation of visitation rights.

If you feel your parent’s rights regarding custody or visitation are being violated, be sure to consult with a family law attorney to determine your options and a course of action.

As with custody, parties can work together to create a visitation agreement, and given the right circumstances and proper guidance, the process can be a relatively smooth one and result in more peaceful relations post-court. But for some, the matter of visitation can be highly contentious.

Creating a visitation arrangement entails a number of different considerations, any of which may lead to dispute, including:

• creation of a schedule of visitation that satisfies both parties
• exchange of the child from one parent to the other
• parental communication
• determination of parent responsibilities during parenting time

There is no one-size-fits-all visitation arrangement, and given the challenges that may arise during visitation proceedings, you may find it beneficial to work with an attorney experienced in New York family law to help you through the process.

Ksenia Rudyuk, of Rudyuk Law Firm, P.C., is an experienced attorney who can work with you to develop, negotiate, and execute a custody and visitation plan that is best for your family while protecting your rights. Rudyuk Law Firm can help you explore all the options for your specific circumstances to determine the right course of action for you.