What You Need to Know About Custody and Visitation

A court will determine which parent is to have custody over a child when parents are unable to reach an agreement on this issue. In making such a determination, the court must base its decision on what it believes is in the “best interest” of the child. This is known as the best interest standard, and in general refers to a number of factors that the court will consider before deciding what will best serve the child and who is best suited to take care of the child. In New York, the child’s health and safety are of primary concern to the court. However, the court considers many other factors, including:

• Which parent has been the main care giver/nurturer of the child
• The parenting skills of each parent,their strengths and weaknesses and their ability to provides for the child’s special needs, if any
• The mental and physical health of the parties
• Whether there has been domestic violence in the family
• Work schedules and child care (babysitting) plans of each parent
• The child’s relationship with siblings or other family members
• The child’s wishes (if the child is deemed to be of sufficient age and maturity for such wishes to be given weight)
• Each parent’s ability to cooperate with the other, and to encourage a relationship with one another

A custody determination by the court is referred to as an “Order of Custody”.

Custody determinations are made up of two components: Legal Custody and Physical Custody.

Legal Custody
The term legal custody refers to decisions that parents must make about major issues and/or events in a child’s life such as
the child’s religious upbringing, medical treatment, and education. If the court awards joint legal custody, this means that both parents will have equal decision making power over these major issues, and that they must consult with one another and reach a joint decision about them. Sole legal custody means that one parent will have the right to make decisions about these major issues, with or without the other parent’s input.

Physical Custody
The term physical custody (also known as “residential custody”) refers to the child’s place of residence–with one or both parents. The court can decide that one parent shall have physical custody over the other, or that both parents will share physical custody. If the court grants joint physical custody, this means that the child will reside with both parents for an equal amount of time, and that both parents will be equally responsible for the child’s daily care and supervision during the time period the child is in each parent’s home. If the court grants sole physical custody, this means that the child will primarily reside with one parent, and that that parent will be primarily responsible for the child’s actual day-to-day care and supervision.

Custody cases can be heard in either Family Court or Supreme Court. Usually, custody cases are started in Family Court unless the parents are filing for divorce, in which case the custody issue is resolved by the Supreme Court as part of the divorce case.

In order to start a custody case in Family Court, a “petition for custody” would have to be filed with the clerk in Family Court, and should be filed in the county where the child resides. There is no fee to file a custody petition in Family Court. Nor is an attorney required to file the case on behalf of a parent, or to represent either parent in a custody case. Parents may, and often times, represent themselves in custody matters. However, in some cases, where a party cannot afford to hire an attorney, the court may appoint an attorney at no cost. The court may also appoint an attorney (known as the “Attorney for the Child”) to represent the child.

A non-parent can seek an order of custody as against one or both parents, but the non-parent must first prove the existence of “extraordinary circumstances” before the court will even hear their custody petition. Examples of extraordinary circumstances may involve a showing that:

• The child is being neglected or abused
• Their parent is incarcerated (and that the other parent is unable to assume care and supervision of the child)
• The child has been abandoned
• The child’s well-being is otherwise at serious risk

Once a non-parent establishes that extraordinary circumstances exist, the court will continue to hear the case and apply the best interest standard in determining whether or not to grant the non-parent’s petition for custody. If the non-parent fails to establish that extraordinary circumstances exists, the court will likely dismiss the non-parent’s petition.

Examples of non-parents who may file a petition for custody include a grandparents, aunts, uncles, any family member or person who has a stated interest in the child’s welfare.

While a custody order can be changed (commonly known as a “modification”), the party seeking the change must show that a “substantial change in circumstances” has occurred since the date of the order. As with the initial custody determination, the court will again apply the best interest standard to the case—what is in the best interest of the child before deciding whether the order of custody should or should not be changed, and whether a substantial change in circumstances has actually occurred to support the requested change.

Usually, the child resides with the custodial parent and it is the noncustodial parent who seeks visitation. The court applies the same “best interest” standard to decide visitation cases, that it does to custody determinations. As such, the court will consider the same factors noted above when deciding the frequency, duration, location and conditions of visitation being sought by the non-custodial parent.

If there are valid concerns about the child being left alone with the parent who is seeking visitation, the court may choose to grant “supervised” visitation— meaning that the child and noncustodial parent will be allowed to have visits with one another but that such visits will be supervised in their entirety by a third party.

Visitation could range from limited supervised visitation to daily contact with the child depending upon many of the above noted factors including the age of the child, the child’s relationship with the non-custodial parent, the relationship between the parents, the child’s wishes, history of domestic violence, geography, resources, etc.

Typically, a parent can’t move to another county or state with the child without the other parent’s consent and/or prior approval from the court that issued the original custody order. If the custodial parent relocates the child without the court’s permission and against the noncustodial parent’s wishes, a judge may sanction (punish) the custodial parent with a contempt order, which can include fines and jail time. A judge could even change custody in favor of the noncustodial parent.

In deciding whether a custodial parent will be allowed to relocate with the child, the law in New York is that the best interest of the child applies, and the court will weigh the benefits of the move against the disruption to the child and the noncustodial parent’s visitation rights.

Again, the court will consider many of the above noted best interest factors, including whether the relocation will provide a real benefit to the child, such as an improvement in the overall quality of life due to:

• A new job opportunity or increased income for the custodial parent
• Closer proximity to the custodial parent’s extended family, who can help with child-care and support
• An educational opportunity, or
• A new marriage.

The court will then need to weigh these potential benefits against the possible adverse effect on the child from reduced contact with the noncustodial parent. Relocation requests are taken very seriously by the court and are very difficult win, particularly where the noncustodial parent objects.

The information in this document has been prepared by The Legal Aid Society for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not act upon any information without retaining professional legal counsel.