Child Custody, Visitation And Family Offense Issues In A Divorce

Oftentimes, issues surrounding custody of a child, visitation and/or domestic violence are the "meat" of a divorce case - the ones causing the most litigation as well as the most emotion.

In New York, custody of children can be determined in a number of ways:

JOINT CUSTODY: In a joint custody situation, both parents have the legal authority to make major life decisions on behalf of their child concerning issues like religion, education or health care. Sometimes they agree to have "equal decision-making" which means they must reach agreement on all major decisions, or else the decision would be submitted to a mediator or Judge to decide. In other agreements, the primary custodial parent gets final decision-making after full consultation with the non-custodial parent. Joint Custody in New York is often reached via agreement but rarely imposed upon the parents by the Judge.

SOLE CUSTODY: When a parent is given sole custody, the child will physically live with him or her, and he or she will have the ultimate authority to make every day and major life decisions for the child.

SHARED CUSTODY: When parents share custody, they generally split their access to the child 50/50. A shared custody situation is very rare.

SPLIT CUSTODY: This is a situation in which at least 1 child lives with one parent, and at least 1 child lives with the other parent. Negotiating a custody plan can be complex. It is important to remember that the court ultimately looks at what is in the best interests of the child. For fathers, this means that if you and your child's mother separate, it is important to remain in the child's life as much as possible. Both parents -- custodial or noncustodial -- should keep as much physical evidence as possible that may strengthen their case.

The overall standard is the "best interests of the child." However, within that standard the court considers "the totality of the circumstances." That said, there are a number of other specific factors the court considers when awarding custody as between two biological parents.

The Judge will generally consider the stability of the child's current arrangement, each parent's home environment and financial ability to meet the child's needs, any arrangements to care for the child when the parent is unavailable, who has been the primary caretaker for the child in the years (or months) leading up to the custody filing, any drug/alcohol use by either parent, the mental & physical health of the parties, adverse sexual misconduct of either parent, domestic violence, as well as the child's preferences.

The court will also assess each parent's willingness to foster a relationship between the other parent and the child, any denial of access to the child, as well as any abuse or neglect of the child. Finally, the Judge will assess the parties conduct as the case is proceeding, including conduct both in and out of the courtroom.

I must first caution - no matter how tense the situation may be around the house - you should generally not move out of the house & leave the kids with the other parent. This will automatically put you behind the 8-ball in winning custody.

Additionally, if you haven't been already, take an active part in EVERYTHING the children are involved in. Make sure his/her teachers, doctors, extracurricular activity instructors, etc. know you by your first name.

If you presently work long hours, reduce them immediately - spend the extra time with your kids. Take them fun places & buy them nice gifts - though caution must be used not to over-do it as otherwise it would look like you're trying the bribe them.

Keep a written diary of any important conversations or interactions with the other parent (a "he-said-she-said" log). Refrain from posting negative content about the other parent on social media as this is potentially discoverable - if you have something to say to a friend/family member, say it in person. Refrain from cursing or denigrating the other parent, especially in writing (I don't know how many cases I have in which one side curses or denigrates the other via text and/or e-mail).

Many people contemplate divorce, but are still living in the same household with their minor children. The question then becomes - how is custody handled?

One way to resolve the issue is for the parties to agree on which parent may have custody, and then allow him/her to move out with the children while the case is pending. Its best that each party have a lawyer and an interim stipulation be drawn up to this effect.

If there's no agreement, then neither parent should move out just yet. Instead, if there's either domestic violence present or same is imminent, then an application for exclusive occupancy and temporary custody should be filed. If that's not the case, then you will then just need to go through the process of a contested custody case. You should both have lawyers who have good experience handling such cases. Generally, the Court will also assign an Attorney to represent the children - and generally will order (though not always) a forensic psychological evaluation on the custody issue.

I face many situations in which a mother has voluntarily given custody of her children over to the father. Many times, this happens because the mother wants to go back to school to obtain a degree, or because the mother's house is cramped & the father just moved into a new, larger space.

Regardless, the mother feels in doing so that the arrangement will just be "temporary." Sometimes the father even expressly states, "I won't give you any problems in giving you back the kids when you finish school."

If only everything were just that simple. When a Child Custody lawyer must get involved, it's because the situation has changed, but now the father will not give the kids back. The mother has no proof of their informal arrangement and therefore must satisfy a high legal burden in order to get an order from a Judge switching custody. What to do?

First, mothers in this situation should get the temporary nature of the arrangement captured in writing, preferably in a custody order which provides that mother may petition for custody again when her circumstances change (while stating in the order itself what exact circumstances may create the change).

Second, it's preferable to have the father sign a notarized letter, affidavit or stipulation stating his intentions of giving the children back upon, for example, mother finishing school.

Finally, any conversations of significance between father & mother should be captured in writing, which usually takes the form of a confirmatory e-mail.

While these steps won't guarantee a mother gets custody back, they'll put her in a much better position that doing nothing at all & assuming "everything will fall into place."

Family Offense & Domestic Violence

Many people are unaware that domestic violence is NOT limited to disputes among married persons. Domestic violence can also occur between family members or intimate partners. But increasingly, domestic violence issues are intertwined in divorce cases.

In New York, the allegations may include (this is a non-exhaustive list): disorderly conduct, criminal mischief, assault, harassment, menacing and stalking.

New York law was recently amended to allow for restraining orders or orders of protection to anyone who is involved in an intimate relationship (generally termed "boyfriend" or "girlfriend" relationships). This change affords victims extra security when it comes to domestic violence.

Proof that there's been an act of domestic violence is the only statutory factor currently considered by the court's as specifically bearing on a parent's fitness to have custody of a minor child (within contested custody litigation).

If you feel you may have been a victim of domestic violence, it is generally advised (at the least) that you consult with your attorney on the issue - if not file for an order of protection. Depending on the circumstances, you may also wish to call the police or contact an agency which handles domestic violence matters.

Finally, there are many resources online one can turn to for assistance - a good start is the court's website: http://www.nycourts.gov/topics/domesticViolence.shtml

For more information on Child Custody, Visitation & Offense Issues, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (914) 368-7580 today.