New York Divorce FAQ’s – Parenting

This is about custody and visitation after divorce in New York, including the effect on custody and visitation of misconduct of the parents, mental health of the parents, and the rights of grandparents in New York.

This information is from Steven Abel, the DivorceInfo Network Lawyer for New York. Click here for information on him.

How does custody get decided as between a parent and a third party?

As between a parent and a third party, the courts traditionally grant custody of a child to the parent, unless there are compelling reasons not to. For example, if a parent is found to be unfit in some way, including being a drug abuser, being in jail, or is found to have abused the child, custody of the child may be awarded to a third party. The court’s main concern is the “best interests of the child.”

How does custody get decided as between parents?

Again, the court’s main goal is to look at the best interests of the child and what will best promote his or her welfare or happiness. In deciding custody as between parents, the courts almost always grant sole custody to one parent, with visitation to the other. In rare cases, where there is no antagonism and real evidence of cooperation, the courts will award joint residential custody. Also on rare occasion, the court will award joint decision making custody, with residence of the child to be with one of the parents.

What’s the terminology for custody?

The court system uses: “Sole custody” where one parent is granted physical custody and the right to make decisions and visitation is allowed to the other. Joint custody is rarely imposed although it will be accepted if the parents agree to it. The use of terms such as parenting and access is growing, particularly among mediators and mental health professionals. Recently the Administrative Judge for the Matrimonial [divorce] Parts, said she would prefer to have these words used in the court system.

Is there a presumption in favor of not changing custody arrangements?

Yes. Since a change in custody can be very disruptive to a child, it is difficult to have courts impose custody changes, especially where there are other siblings in the home. In order to change custody, there must be a substantial change in the child’s situation and proof, usually by psychological and educational evaluations which would support a change in custody.

What effect does the misconduct of one of the parents have on custody?

It depends on the type of misconduct. For example, the Courts have held that the fact that a parent is cohabiting with another person, without some evidence of a detrimental effect on the children’s welfare, is not dispositive of custody. The courts have held that a parent’s infidelity or sexual indiscretions should be a consideration in a custody dispute only if it can be shown that such factor may adversely affect the child’s welfare. Other forms of misconduct, which would affect custody, include, but are not limited to, the abduction of the child, abuse of the child by a parent, abuse of a parent by the other parent in the presence of the child, the abandonment of the child, and egregious interference with the visitation rights of the other party.

What effect does the mental health of one of the parents have on custody?

Some court rulings: Custody may be awarded to a parent, where the other parent suffers from a mental illness, even in the absence of any proof that that parent is unfit. In a case where there is evidence regarding emotional and mental problems, the courts generally will hold a hearing or trial to determine whether or not to grant unsupervised visitation. In one case, the court found that a father who has spent time in psychiatric institutions and was living in an adult home was entitled to have supervised visitation with his children, aged 16 and 11, notwithstanding the fact that they did not want to visit with him because he acted strangely.

What effect does the preference of the child have on custody?

It depends on the child’s age. The courts are generally more apt to consider the preferences of a child who is 13 or older. However, while the courts have recognized the importance of a child’s preference regarding custody, it is not a controlling factor.

How does visitation get set?

The courts have held that visitation is a joint right of the non-custodial parent and the child. Both parents can agree on a visitation schedule, however, where the court is left to set visitation, it is normally scheduled as every other weekend, one night per week, and alternating holidays and school vacations, including summer vacations. The courts have held that in order for the non- custodial parent to develop a meaningful and nurturing relationship with the child, visitation must be frequent and regular.

Is there such a thing as “standard visitation”? If so, what is it?

Yes. As stated above, absent agreement by the parties, the courts have generally set visitation as every other weekend, one night during the week, and alternating holidays and school vacations, including summer vacations.

Is there a standard visitation pattern when the non-custodial parent is in a different state from the child? If so, what is it?

There is no “standard visitation” when the non- custodial parent is in a different state. It really depends on how far apart the parties live. If the driving distance is reasonable, the usual schedule can remain. However, if it is a long distance, especially involving plane travel, visitation can be limited so as not to be too disruptive for the child. As such, the court can grant school recesses, certain holidays, and longer visitation times in the summer months, without granting “every other weekend” or “one night per week” visitation. In one case, the court found that a visitation schedule in which a 3 year old child would be transported between Syracuse, NY and Washington, D.C. every other month was far too disruptive.

What rules govern cases where the custodial parent wants to move away with the children?

No answer.

What visitation rights do grandparents have, if any?

Grandparents do not have an absolute or automatic right to visitation, but may ask the court to allow visitation. The courts have discretion as to whether or not to allow visitation. This discretion, again, depends on the best interests of the child. All factors must be considered, including the nature and the basis of the parents’ objection to visitation.

Other issues in New York: