Child Custody & Visitation

Q. What is custody?

A. There are two parts to custody. One is the right and responsibility to make decisions for a child (legal custody). The other is where a child will live (residential or physical custody). 

Q. How old does a child have to be before a New York court can't make orders about the child's custody and visitation?

A. Eighteen.

Q. What is the difference between joint custody and sole custody?

A. In joint custody, the parents make major decisions about the child together - decisions about education, health, and religion, for example. The smaller, day-to-day decisions in joint custody are made by the parent who is physically caring for the child at the time. In sole custody, just one parent has the right to make the major decisions. 

Q. In awarding custody, do New York courts favor mothers more than fathers or fathers more than mothers?

A. No. Today's courts do not favor either parent more than the other. The law says a custody award is based on what's best for the child.

Q. What do courts think about when they decide what's best for a child?

A. Many things, including: 

which parent has been the main care giver/nurturer of the child 

the parenting skills of each parent, their strengths and weaknesses and their 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 

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 

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

Q. Are there ways to settle custody/visitation cases without going to trial?

A. When you come to court about custody or visitation with your child, you may have a choice: whether to litigate your case before a judge (or referee) or to have your case referred to mediation.

Q. What is Custody/Visitation Mediation?

A. Mediation is a voluntary and confidential process to resolve conflicts. A trained, neutral person (the mediator) can help you develop a parenting plan that will work for your particular family. The mediator will not make any decisions; you will speak and decide for yourself. 

Mediation helps you learn how to communicate with the other parent about issues concerning your child. 

Mediation can help you understand your situation in new ways so you can resolve your conflicts. 

Mediation gives you the chance to discuss all the issues affecting your child, not just the legal ones. 

If you reach an agreement, it is sent back to court on your adjourn date. If the judge or referee agrees, it can become a court order.

Q. How does domestic violence affect a custody decision?

A. Domestic violence against either a parent or a child is considered in deciding custody. Even where the violence was not committed in a child's presence, it can still affect the child and will be considered. Domestic violence may be one act or it can be a pattern of acts. It can be physical, sexual, economic, emotional, or mental abuse. 

Q. If one parent has sole custody, can the other parent see the child?

A. The courts generally want children to have a relationship with both parents. In most cases they will let the parent who doesn't have custody have visits with the child.

Q. What kind of visits?

A. Visits can be unsupervised, supervised, or therapeutically supervised, and may also involve a safe place of exchange or a monitored exchange: 

Supervised Visits: A parent can't be alone with the child. The court will choose someone to supervise the visits if there are serious concerns about a parent's ability to act properly with the child or where there has been domestic violence. 

Therapeutic Supervised Visits: A mental health professional supervises the visits and can try during the visits to improve the parenting skills of the parent. 

Neutral Place of Exchange: A safe location where a child goes from one parent to the other for visitation. Examples: a police station, school, library, or mall. 

Monitored Transition: A third person is present when the child goes from one parent to the other for visitation. The reason for this is to make sure of the child's safety and a calm situation for the child.

Q. What is an Attorney for the Child?

A. An Attorney for the Child (formerly known as a Law Guardian) is an attorney chosen by the court to be the child's lawyer during a custody/visitation case.

Q. What is a Forensic Evaluator?

A. A Forensic Evaluator is a psychiatrist, psychologist, or social worker chosen by the court. The evaluator gives information about the family in a custody/visitation case. The evaluator will talk to the family members and other mental health professionals who have worked with the family, and can give psychological tests. The evaluator will send a report to the court and can be a witness in the case.

Q. I'm a relative who wants legal custody. What happens in those cases?

A. The law says grandparents, aunts, uncles, and other relatives who want legal custody have to show the court that the parents are not fit to care for the child - for example, that the parents have abandoned, neglected, or abused the child or that there are other extraordinary issues about the parents' care. If the court agrees about these things, the court can then consider whether it would be best for the child for the relative to have legal custody instead of one or both of the parents.

Q. I want to have a court custody or visitation order changed. How do I do this?

A. You start a case to "modify" the order. Talk to a clerk in the court where the order was made. Custody and visitation orders may be changed if the court decides that things have changed and that modifying the original order would be best for the child. 

Q. Do I need a lawyer for a Family Court custody or visitation case?

A. Only you can decide this for your case. You have the right to hire a lawyer. If you can't afford a lawyer, the court can appoint one for you free of charge if the court decides that you qualify for this. 

CourtHelp is grateful to the New York State Unified Court System's Ninth Judicial District Committee to Promote Gender Fairness in the Courts. Their pamphlet, "How Decisions About Child Custody Are Made," has been used with the Committee's permission for most of the material on this topic.

Figeroux & Associates

26 Court Street, Suite 701

Brooklyn, NY 11242

Phone: 718-834-0190

Fax: 718-222-3153

www.falaw.us