Frequently Asked Questions: Child Custody
How do I file for custody?
There are two courts in New York with jurisdiction to issue a custody order — the state Supreme Court and the Family Court. While a Supreme Court divorce case will often include custody as an issue to be resolved, a custody proceeding can also be commenced as a separate proceeding in either the Supreme Court or the Family Court. A custody proceeding begins with a petition and can be served with a writ of habeas corpus, notice of petition or order to show cause, depending on the choice of court and the circumstances. We will advise you on the best method to proceed while working to fashion the best presentation of your case in the petition.
What are the differences between sole custody, joint custody, and shared custody?
Perhaps more than in any other area of matrimonial and family law, there is confusion over custody terminology. Having custody of a child, and having "sole" custody of a child are the same thing. It means that the child resides with you and you are responsible for making all important decisions in that child’s life. If the child resides with you but you share the responsibility of making decisions with the other parent, then you have residential custody but share joint custody with the other parent. The term "joint" refers to decision making authority only. In other words, even the visitation parent can be a "joint custodial" parent because that person is jointly responsible for making important decisions (i.e., religious training, non-emergency medical care, etc.). "Shared custody" means the child resides with each parent a substantial amount of time (e.g., one week on, one week off), while "split custody" means one child resides with one parent while the other child resides with the other parent.
How does the Court determine who gets custody?
Where both parents are fit and they each want custody, the court will utilize a “best interests of the child” standard. “Best interests” are difficult to quantify. However, in reaching that determination, the courts are required to consider numerous factors. These include the relative fitness of the parents, the emotional bond of the parents for the child, which parent has been the primary caregiver, the stability of the child’s current residence, the ability of each parent to provide for the child's intellectual and emotional development, the child’s preference, the existence of siblings, and the effect that an award of custody to one parent might have on the child's relationship with the other parent.
Are the children represented?
Yes. The Court, either on its own or upon the request of a party, will appoint an attorney (sometimes referred to as a law guardian) to represent your children. The attorney for the children will meet with the children alone in his or her office, and may also want to speak with the parties themselves, with or without counsel present. Typically, the court will give great deference to the recommendation of custody provided by the attorney for the children, since the court is likely to believe that he or she presents an unbiased view of what is in the children’s best interests. In Family Court, the attorney for the children is usually appointed without cost to the litigants, while in Supreme Court divorce cases, he or she is appointed from a panel of private lawyers, the fees for which are usually shared by the parents.
My ex has custody, but I think our child would be better off living with me. Can I change the custody order?
A custody order, whether the result of a separate proceeding or issued as part of a divorce judgment, can be modified to switch custody from one parent to the other. This is something the court is reluctant to do unless there has been a substantial change of circumstances since the initial order was issued, and the change is in the best interests of the children. Sometimes a single factor is a sufficient change of circumstances, and other cases require a number of different factors. If there is a change of circumstances, the court will evaluate a number of factors to determine if the proposed change of custody is in the best interests of the children. These factors include the length of time the child has resided with the present custodial parent, the relative fitness of the parents, and the preference of the children, among numerous other factors.
I have an order of custody and my ex refuses to return our child to me. What can I do?
An immediate court proceeding is needed to obtain a court order directing the production of the child. Called a writ of habeas corpus, the proceeding requires the non-custodial parent to actually produce the child in court. If the person does not appear, the court will issue a warrant directing the sheriff or police to pick the person and the child up and bring them to court. A proceeding can also be brought to hold the non-custodial parent in contempt, and result in a fine or imprisonment. Finally, if the police believe that the child has been kidnapped or if the child is in danger, they may arrest the other parent. If the child has been taken across state lines, a federal felony prosecution can be brought. It is important to contact an experienced family law attorney in such cases.
I have an order of visitation and my ex refuses to let me see my child. What can I do?
As with a violation of custodial rights, a habeas corpus proceeding can be commenced to obtain immediate access to your child. Also, a contempt or violation proceeding can be commenced in which the available remedies include court-ordered make -up visitation, and/or fine and imprisonment. Since the denial of access to your child is a serious matter, it may be a basis for a modification of custody too, and a simultaneous modification proceeding may be in order.
I have custody of my child and I want to move. Do I have to go to Court?
Yes, if you are moving to a location that denies “meaningful access” to the non-custodial parent. Just how far that distance is, can vary with the geography and the court (and judge) which considers the question. As a rule, an out-of-state move will require court permission. Failure to obtain a court order can have disastrous results for the custodial parent who “moves first, asks questions later,” since the non-custodial parent will likely succeed in obtaining custody of the children. If you are thinking of moving, you should consult a knowledgeable attorney first, since your chances of success will vary depending on how involved the non-custodial parent has been with the child, among other factors.
I think my ex is abusing or neglecting our child. What should I do?
If the other parent is abusing or neglecting the child, you should contact the Child Protective Services (CPS) hotline (1-800-342-3720) immediately, and if the conduct rises to the level of criminal misconduct (or you are not sure if it does), contact the police. You may also bring a family offense proceeding in Family Court on behalf of the child to get an order of protection.
It is important to preserve evidence immediately. If there is physical evidence (cuts, bruising, etc.) take photographs. Of course, get medical attention if needed. If you can get a recorded admission this will prove invaluable later in court.
Also important is protecting the child or children from further abuse or neglect. You may need to keep the children in your care until the Court can fashion the appropriate remedy. This approach is not without risks, however, since court-ordered custody or visitation rights may be violated in the process. Viewing the situation in hindsight, the Court may not agree with your assessment that risk of further harm was imminent, or the harm significant and, as a result, may find that your withholding of the children was a contempt of the court-ordered rights of the other parent.
What rights do grandparents have to custody and visitation with their grandchildren?
Where either or both of the child’s parents are deceased, the grandparents may petition for visitation. If both parents are living, the grandparents must show that they enjoyed a positive relationship with their grandchildren, and then found themselves shut out altogether, or that they were denied access from the outset, but made efforts to establish a relationship with their grandchildren which were rebuffed. In these cases, the petitioning grandparents will likely be granted legal standing to sue for visitation. Once the court decides that the grandparents have standing, the court will then determine if grandparent visitation is in the children’s best interests. Generally, grandparent visitation is one to two days per month.
Grandparents may also seek legal custody of their grandchildren in certain situations, such as a prolonged separation between parent and child during which the child lived with the grandparents. A “prolonged separation” is defined as twenty-four months or more, but standing may also be conferred in cases of a shorter duration, and under other “extraordinary circumstances”. Of course, before the court orders custody to the grandparents, they will have to also demonstrate that this in the best interests of the children.
Can a sibling, distant relative or other person file for custody?
Yes. Where extraordinary circumstances are proved, an individual, whether related to the children or not, can sue for custody. Extraordinary circumstances include surrender, abandonment, persisting neglect, unfitness, and unfortunate or involuntary disruption of custody over an extended period of time. As with grandparent custody (and visitation), the presence of extraordinary circumstances is just the first step. The petitioner must then prove that their obtaining custody is in the best interest of the children.
What are my options if I disagree with the Court’s decision regarding child custody or visitation?
Please refer to the Appeals FAQ's, and contact our office for further information.