Child custody and visitation in New York is an area of law that requires an attorney that understands the importance of the day to day life of the party and children while litigating custody and visitation.

The difference between litigating a custody case, successfully, and losing a custody case depends upon how you navigate the issues between you and the non-custodial parent. This is where an experienced divorce lawyer or child custody lawyer can be invaluable since they are usually equipped to guide you through the choices you must make during the litigation that will strength or weaken your case..

Clearly, if there is abuse or neglect of the children, mental illness of either party, or domestic violence the Court will favor an award of custody to the parent who is deemed best fit.  You can also lose custody if you are a substance abuse her or if you fail to coparent or fail to follow court orders as all of the above factors would negatively impact the best interests of the children.

Please note that initially if there is no custody order, either of the parents can keep the children. But disputes arise when the parties are unmarried and there are no formal custody orders.  That’s why it’s important to file for a custody order, either in a divorce case or a child custody case in Family Court. 

That said, New York is not a 50-50 state as to child custody laws and a Court will not always require the parties to split their time with the children on an equal basis.  Rather, since 1970, New York has used a certain test in determining who gets custody in a child custody dispute.  That is, the New York Court will decide custody matters based upon all factors that consider the best interest of the children.

In determining the best interest of the children, the courts will take into account the following.  For instance, they will consider which parent fosters a meaningful and robust relationship with the other parent and which parent is best fit to care for the children. Other factors of consideration are measuring how long the children have resided with one or the other of the parents, where the child has been residing, primarily, if the child has certain  needs that one parent can best meet over the other, instances of domestic violence, the existence of siblings, better parenting skills, and work schedules that are conducive to providing direct care for the children. A  child’s preference is also considered in a custody matter. 

When we speak of child custody in New York, there are distinct types which must be considered. Joint custody is when both parents may decide the major legal decisions as to the children. These legal issues normally entail decisions as to medical religious or educational matters  relating to the children. 

The other  terminology that best describes child custody matters in New York has more to do with physical residence. For instance, if one party has joint physical custody, that means that the children go back-and-forth between the parents. However, if one parent has sole physical custody, that generally means that the child lives primarily with one parent over the other,  and that the child’s primary residence is with that parent. So, theoretically, the parties can have joint legal custody with a shared parenting schedule or  the parties can have joint legal custody, but one of the parties can have primary physical custody.  These issues are generally negotiated between the parties, or if the parties cannot agree, then a judge will decide these issues at trial.

Generally a Court will allow a child who is over the age of 18 to refuse to visit with the noncustodial parent in most cases, but it’s always best to get a judicial determination as to this issue.

Self-help is discouraged by the courts. For instance, if a non-custodial party takes the child out of the state or country without the permission of the other parent, or against a court order,  then this is usually considered  parental kidnapping and the guilty party can be charged with a crime. 

Many parents want to know what happens if one parent does not allow the children to visit with the other parent. In those instances, it is best to go to court to plead your case because liberal visitation is favored in New York, absent aggravating circumstances, such as those discussed in the paragraphs above. Courts want to see the children have both parents participate in their lives. 

Parents who discouraged the children from visiting with the other parent, because the children are telling them they do not want to go,  will be discouraged to learn that it is not up to the child to decide who has child custody. Only a judge can decide who has child custody. The courts will listen to the preferences of the child but that is not the determining factor since the judge’s decision entails consideration of a multitude of factors outside preferences.

As for your choice in choosing a child custody lawyer, you want the lawyer you choose to have vast experience in family law.  You want a custody attorney to be able to advise you as to day-to-day decision making because you might make a mistake in a decision that can negatively impact your case. That is why hiring a lawyer who is available to talk to you is important.  Also keeping a diary is very important so that you are documenting facts that may be helpful to your case. Keeping a diary also helps you communicate better with your custody lawyer, so that at each court appearance, your custody lawyer will be prepared to relay to the judge these circumstances in support of  temporary relief pending the fac-finding or trial.

I hope this has been helpful to you.  This is not legal advice and is intended to be informational in nature, and so it is always best to fact-check with an attorney of your choice.

By:  New York Child Custody lawyer and Manhattan Divorce lawyer

       Lisa Beth Older, Esq. 

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