Visitation and Custody (V Petitions)
In addition to child support, custody and visitation is probably the area most generally associated with the Family Court.
Everyone knows someone who has been through the Family Court system as a result of a dispute over custody or visitation of their child.
Simon & Milner understands how stressful and emotional a situation such as this can be and we vow to be as understanding and helpful as possible during your time of need.
If you have a child in common with someone else and are no longer in a relationship each party remains entitled to contact with that child. The nature and degree of that contact will depend upon your individual situation but any parent of a child has the absolute right to apply to the Family Court for custody or visitation of that child unless their parental rights have previously been terminated. (For an explanation of termination of parental rights click here
.)Who may file a petition for custody or visitation?
In general, only a parent may file a petition for custody. (For more information on establishing paternity click here) There are provisions in the law that allow for others to file for custody under “extraordinary circumstances” or if the parents have died. For more information on filing for custody as a non-parent you should contact an experienced family law attorney at Simon & Milner.
Visitation Petitions can be filed by parents, grandparents, siblings, step-siblings and step-parents.What is the difference between Custody and visitation?
Visitation is simply a legal right to spend time with your child. Custody means that you have control over the child and any important medical, educational, and other decisions affecting the child's life.What is joint custody?
Joint custody means that the parents have agreed to share the decision making authority over the child. However, even though parents have joint custody, one of the parents must still be the “primary custodial parent.”How does the Court determine who should get custody?
The simple answer is that the Court awards custody and visitation time in accordance with what would be in the “best interests of the children.” Although the standard is only five words long, in reality, the factors that go into determining what is in the “best interests of the children” is quite complicated. There is no standard custody/visitation case. Simon & Milner understands this and treats each custody/visitation case like the unique set of facts that it is.
If you would like a realistic assessment of your custody/visitation case you should contact an experienced attorney at Simon & Milner today for a free consultation.How does a custody/visitation case proceed?
Initial Court appearance
• Before proceeding the Court will appoint an attorney known as a law guardian to represent the interests of the children.
• At the initial court appearance the Court will usually set some type of temporary order of custody and visitation.
• Very often the temporary order will be based upon which parent may currently have “de facto” custody (i.e. possession of the child).
• The order can also be based upon a host of other factors such as allegations in the petition, drug test results, general appearance of the parties, or simply a judgment call by the Judge.
• If there is a dispute as to substantial facts the Court may hold a hearing to determine a temporary order of custody or visitation.
• It is important to keep in mind that a temporary order of custody has no effect on the ultimate outcome of the proceeding, it is merely a temporary decision by the Judge until the case has been fully decided.Subsequent Court Appearances
• At subsequent Court appearances the Court will attempt to encourage the parties to settle. Most, but not all custody and visitation cases will settle. The simple fact is that parents and children are usually happier when everyone can agree on a solution rather than fighting it out in Court.
• If the case does not appear to be likely to settle the Court will set the matter down for trial.
However, prior to trial the Court may wish to do some or all of the following:
• Conduct a home study investigation by CPS/ACS of both parent's homes
• Appoint a forensic evaluator
• A forensic evaluator will conduct a psychiatric interview with each child, both parents, and any other persons living with either parent and make their own recommendation to the Court (which the Court may or may not follow) regarding custody and/or visitation.
Order Drug Testing
• Depending on the Court, the Judge may ask you to submit to an “instant drug test” which may be conducted in a facility located within the court house.
• Miscellaneous additional requirements for the parents
• There are hosts of other things that the Court can order parents involved in a custody or visitation dispute to do that are far too numerous to list here.Trial
• Most custody/visitation cases settle before trial.
• However, if there is a trial, the issues of custody and visitation will be decided by the Judge based upon what is “in the best interests of the children.”
• Both the Petitioner, Respondent, and the children (through the law guardian) participate in the trial and have the right to call witnesses and cross-examine the other witnesses.
• At a trial the Court will consider countless factors before making a custody decision. Some of the most important factors are as follows:
• Child's school records (attendance, behavior, etc…).
• Work schedules of each parent.
• Home environment and neighborhood each parent could provide.
• History of past parenting.
• Testimony from a therapist or other mental health professional of the child.
• Activities the parent is engaged in with the child.
• Presence or lack thereof of extended family.
• Domestic violence.
• Prior agreements with respect to custody of the children at issue.
Does my Child's Opinion Matter? Will my child have to testify?
As a part of almost any custody trial the Family Court Judge will conduct what is known as a “Lincoln Hearing.” A “Lincoln Hearing” is essentially your child's opportunity to testify. However, a “Lincoln Hearing” is held in the privacy of the Judge's chambers and neither parent nor the parent's attorneys are allowed to be present. The only people present for a “Lincoln Hearing” are the Judge, your child, the Law Guardian and a Court Reporter.
Your child's age will determine how much of an effect his opinion will have on the Judge making the determination. Once your child attains the age of about 12 the Judge will take the wishes of the child quite seriously and the Judge may even make a decision contrary to what he believes is in the child's best interests if he feels that the child making the decision is mature enough to understand the consequences of what he is doing. Ultimately your individual child's level of maturity and understanding of what is transpiring will determine how much weight is given to your child's opinion. Once your child is 16 it is almost a certainty that the child's opinion will be the determining factor.
Even if your child is young, their opinion will still be taken into consideration by the Judge. The amount of weight accorded to your child's opinion will be based upon your individual child's level of maturity and understanding of the process as well as the rationale behind your child's decision. For example, a 10 year old child who wants to live with their Dad full time because Dad bought a new puppy will have their opinion granted far less weight than the 10 year old who wants to live with Dad because Dad is closer to his school and friends and the child thinks Dad does a better job helping him with his homework.
If I don't get custody how much Visitation with my Children should I expect?
There is no simple answer to this question. Your visitation schedule will depend on the unique circumstances of your case as well as the unique circumstances of your child's schedule. In addition the Court will need to take into account the work schedules of both parents as well as the distance between the homes of the two (2) parents in crafting an Order of Visitation.
Can Custody be Changed?
Yes, certainly. In order to modify custody, you must file a Petition to Modify an Order of Custody/Visitation. In order to be granted a modification the Petitioner must demonstrate a “substantial change in circumstances since the prior order or agreement.” In addition, even if there is a “substantial change in circumstances” the Petitioner must still demonstrate that the modification would be “in the best interests of the children.”
Although certainly not a comprehensive list, some of the major factors courts accept as a “substantial change in circumstances” are as follows:Interference with the relationship between the child and the non-custodial parent (also known as parental alienation).
• If the custodial parent is attempting to keep you away from your child for no good reason or is “brainwashing” your child to dislike you that is certainly a reason to ask the Court to change custody. No parent has the right to “alienate” a child from the other parent.Denial of Visitation with non-custodial parent
• Very similar to parental alienation
• Parents have a right to visit with their children and if the custodial parent is preventing the non-custodial parent from enjoying that right very often the only remedy is to change custody to the parent who will follow the order of custody and visitation.Custodial parent is now less fit as a parent
• This is clearly a very broad category. As an example, the custodial parent could be suffering from a substance abuse problem, psychiatric issue, or simply be acting negligently towards the children. Any of these would be sufficient reasons to ask the court to modify the order of custody.Preference of a child if sufficiently mature
• For example, if at the time a child was 8 years old, an order of custody was entered granting residential custody to the mother but now, at age 15 the child states that he wants to move in with his father there would be sufficient reason to ask the Court to modify an order of custody.
Can the Custodial Parent move far away if they Wanted?
In order for a parent to properly relocate that parent must file a petition to modify the order of custody with the Family Court. As with any other custody or visitation decision the Court will either permit or deny the relocation request based upon the “best interests of the children.”
Some of the major factors that the Court will consider in determining whether or not to approve a relocation request are:Good faith of parents in requesting or opposing the move
• The Court is unlikely to approve a parent moving halfway across the Country with the children simply because the weather is nicer or they are looking for a change of scenery. However, if the parent has been offered a unique job opportunity or something else of that nature the Court will be more inclined to honor the relocation request.
Child's respective attachments to each parent
• If the child is very close to both parents the Court will be much less likely to grant a relocation request than if the child is much closer to the parent who is seeking to relocate the child.Possibility of devising a visitation schedule that will preserve a meaningful parent-child relationship.
Change in lifestyle of the child if the move is permitted.
• For example, will the child be moving to a safer neighborhood or to a better school district.
• Effect of relocation on the child's relationship with extended family members.What if the Custodial Parent ignores the Order of Visitation and Refuses to Allow me to Visit my Children?
The remedy for such a refusal is to file a Petition for Violation of an Order of Custody/Visitation. If you can demonstrate that the parent is willfully disregarding the Order of Custody/Visitation the Court has the power to hold that parent in contempt of Court.
As a result of such a finding the Court has many potential remedies including but not limited to ordering “make up” visitation, changing the visitation/custody order, sanctions (fines) or incarceration for up to six (6) months.
The Court is unlikely to hold a parent in contempt for a single isolated violation. For instance, if the custodial parent takes the child away for the weekend instead of providing you with your court ordered visitation the Court is unlikely to take any action if that was the first and only time such an incident occurred. However, if something like that becomes a regular occurrence, that would in fact be considered a violation and the parent could certainly be held in contempt of court.
In addition, if there is simply a disagreement regarding the interpretation of the Order the Court is unlikely to hold the incorrect parent in contempt, instead, the Court would simply instruct the parents as to the proper interpretation of the Order and instruct the parents not to have this same dispute again.
Need Additional Information?
Simon & Milner understands how stressful and emotional a custody/visitation case can be and we are here to answer all of your questions. If you have additional questions that weren't answered here please feel free to call an experienced Family Law attorney at Simon & Milner who will be happy to provide you with a Free Consultation!
The law firm of Simon & Milner in Valley Stream, New York are here if you have questions about visitation and custody. Call (516) 561-6622
or (800) 807-5616