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Can I apply for Custody?
October 29, 2018
Can I apply for child custody?
There are many things you need to know before you can apply for child custody in New York.
For one, a court must have the power to adjudicate your case. We call that “jurisdiction”. This is a complex idea of law that involves many factors but the initial inquiry is for a judge is where the children have lived for the past six months, and whether there is a prior order of custody in place. As for the six-month rule, if there has been no prior order of any court from another State, then New York would have jurisdiction to hear your case if the children have resided in New York State for the last six months. If the children were born in New York but are infants under the age of six then New York usually has the power to adjudicate your case. However, if the parties have permanently moved to another state with the children then the parties can apply for custody in that state.
Custody is neutral gender, in other words, either of the parties may seek custody of their children. Usually, the court will decide temporarily as to where the children will live until the final determination after a fact-finding hearing or trial. Usually the lawyers will argue in court that the children should stay with the parent with whom they currently reside except for extenuating circumstances such as unfitness to parent, domestic violence or drug abuse. But a temporary Order does not necessarily mean the court will not order something else after a trial. That is why the behavior of the litigants is crucial as the case progresses because the court will adjourn the case month to month to see how the children are faring with the parents. The courts are people so they judge you every time you go to court and may make informal assessments as to how you are doing. One of the things a court looks at is the ability to foster a good relationship with the parent who is not the custodial parent. Be sure you encourage visits with the other parent unless there is a serious reason why you should not do so. But never act without permission of the court or counsel. For instance, in that instance, if you learn that one parent is abusing drugs or alcohol tell your attorney so they can make a motion to the court to suspend visits or to make visits supervised pending further investigation. Never let a lot of time go by before you act.
If there is an extant order of custody in favor of a parent and there has been a significant change of circumstances you can apply to modify the present order in your favor.
In making a final Order of Custody the courts will look to what is in the best interests of the child and will take into consideration things like who is the primary caregiver, how long have the children resided with a particular parent, which parent can best provide for the children’s emotional, medical and educational needs. While finances do come into play the courts more importantly place emphasis as they should on such factors as which of the parents provide direct care and nurture and guide the children in all aspects of their lives. In some instances, both parents may fit the bill and then a court can order joint custody.
Lastly, there are certain procedures you must follow if the parents were never married. For instance, if you were never married but you are sure that the child is yours then you should go to Family Court and apply for an Order of Filiation to establish paternity, especially of you were not present at the birth of the child in question and you never signed an acknowledgment of paternity at the hospital. Only after paternity is established may you apply for child custody in New York.