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Custody & Visitation / Parental Time

With respect to issues surrounding custody and visitation, given that divorced parents often have differing decisions about issues concerning their children, it is crucial to work with an attorney with whom you not only feel comfortable, but who will strongly advocate on your behalf to work toward a fair outcome.

Custody:

The attorneys at the Law Offices of Nathan Pinkhasov, PLLC understand that custody and visitation, now called parenting time, are often the most disputed areas in divorce negotiations as they affect the emotions of the parties.  Although the marital relationship has deteriorated, the parents’ responsibility to manage their children's growth and development continues and the parties will need to work with each other in order to make the child’s living arrangement as smooth and peaceful as possible.  We understand that this can be a tall order based upon the nature of your divorce and your relationship with your soon to be or former spouse.  It is our goal to calmly navigate the contentious relationship that may exist between parties to ensure that the best result for the child is reached.

Custody, also referred to as “parenting” is a parent’s legal right to control his or her child’s upbringing. Both parents have a legal right to ask for custody and visitation in a divorce proceeding.

Custody has two parts: legal and physical.  Legal custody is the right to make major decisions about your child such as where your child goes to school, what kind of religious training a child receives, whether your child undergoes surgery.  Physical custody relates to with whom the child lives on a day-to-day basis.  The parent with primary physical custody is generally called the “custodial parent” or the child’s “primary caretaker.”  A parent who does not have custody will likely be entitled to visitation, also known as parenting time.

In New York child custody matters, the Court determines custody based on what it believes to be the best interests of the children, for children under the age of 18 years. This aspect can be the most complicated and controversial component of a divorce in New York.  When the parents disagree about issues of child custody, the New York Court will often appoint a law guardian who will make an investigation and issue a recommendation regarding child custody and an appropriate visitation schedule.

In New York State, the issue of custody can be decided either by the New York State Supreme Court or by the Family Court.   During a divorce proceeding, if these matters have not already been decided by the Family Court, then they will be addressed in the Supreme Court divorce action.  When parents are unmarried, it is the usual practice to have the issue of child support determined by the Family Court.

In deciding custody, New York follows the doctrine of doing what’s in the best interest of the child.  If the parents of the child don’t agree on the issue of custody, the Court will make its own investigation before deciding on custody, which will include having an attorney assigned to the child and may also include investigation and report from a social services agency or mental health professional.

In determining what is in the best interest of the children, the Court will weigh and balance the “totality of the circumstances” and may consider:  any effect of a separation of siblings; the wishes of the child, if the child is old enough; length of time the present custody arrangement has continued; abduction or abandonment of the child or other defiance of legal process by one of the parents; relative stability of the respective parents; care and affection shown to the child by the parents; atmosphere in the homes; ability and availability of the parents; morality of the parents; prospective educational probabilities; possible effect of a custodial change on the children; financial standing of the parents; and parents' past conduct.

Additional factors that New York courts consider include: refusal of a parent to permit visitation and/or the willingness of a parent to encourage visitation; unauthorized relocation of the parent and child to a distant domicile; and making unfounded accusations of child abuse.

Where either parent alleges that the other parent has committed an act of domestic violence against the alleging parent or a family or household member of either parent, and the allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child.

While New York courts tend to refrain from intervening with respect to the child's religious upbringing, courts may consider religion as a factor where a child has developed actual ties to a specific religion, or where a parent's particular religious practices threaten the health and welfare of the child.

GRANDPARENTS' RIGHTS TO CHILD CUSTODY

In January, 2004, the New York Domestic Relations Law was amended to give the grandparents of a child residing in New York State custody rights in a case where the grandparents can demonstrate the existence of "extraordinary circumstances". Such an "extraordinary circumstance would be an "extended disruption of custody". This would constitute a prolonged separation of the child and the parent for at least 24 continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the grandparents. The New York Court may find that extraordinary circumstances exist where the prolonged separation is less than 24 months, based upon other circumstances.

Visitation/Parenting Time:

In New York, the issue of visitation/parenting time can be decided either by New York State Supreme Court or by Family Court.   During a divorce proceeding, if visitation/parenting time has not already been decided by the Family Court, it will be addressed in the Supreme Court divorce action.

The parent that does not have physical custody of a child may be granted an order of visitation/parenting time from Family Court.  Visitation/parenting time may be stated simply as reasonable rights of visitation or as a specified schedule.  Visitation/parenting time usually takes place outside of the child’s residence, however if warranted, may be limited to supervised visitation.

Modification of Child Custody, Visitation/Parenting Time Order:

The attorneys at the Law Offices of Nathan Pinkhasov, PLLC understand that circumstances change which could warrant a change in the previously ordered visitation/parenting time.  Until a child is emancipated, the court retains the power to modify visitation/parenting time upon a demonstration of substantial change in circumstances of one or both of the parents.

When a party refuses to comply with a Family Court order, our attorneys can make a formal application to the Family Court to find that party in violation of the order.  If the Family Court agrees that a party has not complied with an order, Family Court may change its order and or impose sanctions on the party in violation.