Best interest of the child is the test used in the family and supreme courts of the State of New York to determine custody of minors. The parent who presents the best evidence of providing a stable and loving home will be advantaged in any child custody dispute.

In New York State, neither party has an automatic right to custody of children. To seek custody in New York, the child(ren) must have lived in state for six months before you can file a custody petition. New York Courts inquire as to who is the primary caretaker of the child(ren): the one who feeds, dresses, drives them to school, changes diapers and brings them to medical appointments. If both parents share these responsibilities equally, both are considered equal caretakers of the child(ren).

The court also evaluates the fitness of the parent to take care of the child(ren): whether there are issues with alcohol or drugs or unpredictable behaviors that may negatively impact on the child(ren). History of domestic violence is also considered in determining custody and visitation. Where there is a history of behavior that is particularly worrisome, supervised visitation may be the only kind of visitation ordered by the court.

An attorney for the child is immediately appointed to represent the child(ren) upon the filing of a custody or visitation petition. The attorney for the child meets with the child(ren) and speaks with the parents and/or their attorneys and makes recommendations to the court pertaining to the welfare of the child(ren).

In cases where both parents are able to communicate well and agree a significant percentage of the time, an order of joint custody will be awarded by the court either after trial or approved as a result of a submitted settlement agreement. If you are awarded joint custody, it means that you have an equal responsibility to make decisions about your child(ren). In the event you and your former partner cannot agree on the time of day, the judge will most likely not agree to an order of joint custody, but rather will give sole legal custody to one parent. With joint custody, each parent is entitled to receive school reports and information, medical reports and can participate in all decisions which effect their child(ren).

What if the parents are not married? If the father never established paternity by signing an “acknowledgment of paternity” then he is not entitled to any rights of custody or visitation. How would a father resolve this issue? He has two options:
the father could ask the mother to sign a written agreement which states he is the father and file the document with the child’s birth certificate, or, the father could file a paternity petition in family court and ask for a DNA test. Be advised, if the child is the child of the petitioning father, but was born while the mother was married to another, there is a presumption in law that the child is the biological child of the mother’s spouse.

What should you do if you have a custody/visitation order but the other parent refuses to allow visitation? You can file a violation of visitation petition in the local family court. It is never a good idea to prevent the other parent his or her parenting rights without good reason. Your refusal to adhere to a custody/visitation order can be used against you in court and be introduced as evidence at trial to prove you can’t be trusted to share custody or visitation since you have deprived the other parent of her or his legal rights. However, in the event one of the parents might pose a danger to the child, such as driving while intoxicated while the child is in the car, or, engage in domestic violence in the presence of the child, then the other parent must file a petition to stop visitation and have the court review the nature of the allegations.

So, if you have more questions about child custody and visitation, contact me today.

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