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What is child custody?
June 16, 2020
Child custody is one of the most horrible negotiations a person can find themselves in. When we speak of joint custody it means several things. You might agree on who will be making decisions, but you still need to work out a visitation schedule and a primary physical residence before you can enter into a written agreement. The written agreement should also include the place and time of all exchanges including a schedule for holidays, summer recess break and vacations.
Wow some of these arrangements are called visitation rights I like to refer to them as custodial time with each parent. Often the parents can work out these issues between themselves however if the exchanges become volatile and even Physical, sometimes you need to help with the court to work it out. Parties often referred to parent coordinators or mediators.
If you are afraid of your spouse and have reason to be, then make sure you pick a place for the exchange to occur that is in the public. You might also want to bring a third-party with you to bear witness to any possible violence or difficulties. If you wish to effectuate your custodial time, be sure you are diligent about arriving on the day and time that you are supposed to arrive on. You do not want to disappoint the children by not showing up. This can also work to your
Detriment in a court case if you do not do so. Lately, the courts have been issuing parenting guidelines or codes of conduct expected of them in cases involving conflictual custody. These guidelines off and promote the fact that parents should not disparage the other party and should not interfere with the other party’s visitation, but rather should encourage and foster a good relationship between the children and the other parent. In fact, caselaw holds that failure to do so will render you per se unfit and the other parent could win custody over you. This, even despite you are the better parent and all other matters. as to child custody, you have a choice of filing in Family court or Supreme Court. If you were not involved in a divorce action you should probably start with filing a custody case in Family court. If they divorce action is filed, then you always have the option of consolidating the case with the divorce action and removing the Family Court action into the divorce action. If you were in Family court fighting a custody case and you or the other party files for divorce, you are required to report this back to the Family court who will then encourage you to transfer the case to the Supreme Court to join with the divorce action. Many times, parents asked whether they could modify the custody agreement. This is a tricky area because once a Family core issues a custody order this is a binding order that is so ordered by the court. So, it is exceedingly difficult to modify this order. However, some circumstances might arise where a modification of child custody is imperative. Let us say that one party wishes to relocate and simply cannot exercise their visitation at their new residence. The court will entertain a modification petition under these facts. Also, if it can be shown that a modification is necessary to effectuate the best interest of the child, and there has been a substantial change in circumstances, you may move to modify the child custody order. as such, as long as you can find proof that there has been a huge change in circumstances then you may simply ask the court to modify the agreement so long as it furthers the best interest of the child or children. Make sure your agreements include a provision that the two of you can modify child custody between yourselves. If you were able to do that, then it is important that you get a court order that includes the new terms.
Another reason why you might seek modification is because the children get older and their voice gets stronger and they insist on their preference to live with the other party. If the children are 12 or 13 years of age you might want to file for a modification petition to modify the custody order because the children will be appointed an attorney called an AFC and that attorney must advocate for the preferences of the child or children. I hope this information helps you in your attempt to gain custody in your case.
By: Lisa Beth Older, your New York City divorce lawyer and Manhattan Custody lawyer.