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Custody and Visitation
Introduction

The term custody encompasses the rights that parents have in their minor children, including the right to have their minor children live with them and to make all decisions regarding their education, health, and general well-being.

Traditionally, an award of custody to one party includes both possession and control of the child, as well as custodial decision-making. Joint-custody awards where practical are becoming increasingly more common. Such awards vary depending upon the circumstances of the parties and may include such arrangements as shared physical custody and joint decision making or sole custody in one parent and all major decision-making shared by the parents.

An award of custody to one parent does not terminate the rights of the other parent in the child. Noncustodial parents also retain visitation rights with the child unless there has been a judicial determination that such visitation would be harmful to the child. A noncustodial parent may also seek a change of custody in his or her favor at any time during a child's minority if a change in circumstances warrants a custody modification.

How Custody Determinations Are Made

The best interests of the child standard is used when parents with an equal claim to a child are contesting custody. There is no prima facie right in either parent to custody. Formerly a "tender years presumption" was applied which favored the mother in custody determinations. While it has not been firmly established in the law, there has been strong advocacy for a "primary caretaker presumption" that would favor the parent who is most directly involved in the day to day care of the child as the custodial parent. The best interests standard would also be applied as between non-married parents so long as their identity is not in issue.

Where the parties are of unequal status (i.e. parent versus non-parent) the basic constitutional principal that a parent's right to the custody of her/his child is a fundamental right is applied. In such cases, the parent will be deprived of the custody of their child only if there is a showing that the parent is unfit or has neglected or abandoned the child or other extraordinary circumstances and this behavior is proven in a court of law. Where the parents arrange for the child to live with a third party, a court must make a judicial determination as to custody.

Courts apply a number of factors in custody disputes in order to determine the best interests of the child, including the ability of each parent to function as a parent and to meet the individual needs of their children. There is no single factor that determines custody and courts generally decide upon a totality of the circumstances presented. However each parent's ability to meet a child's emotional and physical needs-especially the needs of children who are already vulnerable-will be given particular scrutiny by the court.

Some factors that would have a negative impact on a parent's custody claim are:

  • diagnosed mental illness
  • abuse of alcohol or drugs (unless there has been successful participation in a treatment program)
  • neglect of children
  • undesirable lifestyle
  • and abandonment

Factors that would not (or should not) affect a custody determination include: the lower economic status of one of the parents since courts can equalize the parent's economic status through maintenance and child support awards; indiscreet sexual activity and preference for persons of the same sex are not the basis for denial of custody unless it is shown that there is a detrimental effect on the children.

Where the parents work, the court must be satisfied that there are adequate child care arrangements and as between working parents preference for custody will be given to the parent who works regular hours and has time left to spend with the children. A parent who does not work full-time outside the home but is unwilling to devote substantial time to the children will have their claim to custody weakened.

Other factors of importance to the custody determination include parent/child relationships as to whether it is especially poor or especially good. However, the court will want to determine that the child has not been deliberately brainwashed against one parent. While not determinative, a child's preference should be considered by the court. The weight such a preference will be given depends upon the child's age, maturity, and freedom from parental coercion. Stability of environment is another factor that courts deem important and they are reluctant to remove a child from a familiar environment.

There is a strong preference to keep siblings together, and courts will deny arrangements that separate siblings in the absence of compelling circumstances. Where religion is a factor in a custody dispute, courts initially take the posture on non-interference due to the constitutional protection of religious freedom. However, courts may inquire into a child's actual ties to a particular religion or as to whether certain religious practices threaten the health or welfare of a child. The Courts will also take into consideration if one parent has engaged in domestic violence against the other.

The foregoing list is not exhaustive but constitutes the factors most commonly at issue in custody determinations-ultimately each case is determined on the totality of the circumstances.

Visitation

For a noncustodial parent, visitation is one of the residual custodial rights that they retain in their children. New York courts have characterized the ongoing relationship between the noncustodial parent and the child as a joint right which, in the absence of a showing that such visitation would be harmful to the child, must be provided as part of the initial custody determination. There is a presumption on the part of the courts that such visitation is in the best interests of the child. The best interests standard is also applied to determine the nature of the visitation, its frequency, duration, where visitation takes place, and whether it is supervised or subject to any other conditions.

The Court generally encourage frequent and regular visitation when the parents live in the same locality and where it does not interfere with a child's school schedule, so that the parent and child may maintain a meaningful relationship. Where the parents live at some distance from each other, liberal visitation is usually provided for school holidays and summer vacations.

The question of the need for supervised visitation generally comes up in situations where the noncustodial parent has threatened to kidnap the children, has a drug or alcohol problem, or where there has been violence or threats of violence towards the custodial parent or the children.

The visitation rights of the noncustodial parent will only be denied when there is substantial evidence that such visitation will be harmful to the child or where the noncustodial parent has in some way forfeited his or her right to visitation.

A child wishes regarding visitation will also be considered and weighed based upon the child's age and maturity, but will not be ultimately determinative.

A custodial parent's willful deprivation of a noncustodial parent's visitation rights has been viewed by court as inconsistent with a child's best interests and may be the basis for awarding custody to the noncustodial parent. Another possible consequence of this interference may be the suspension of the noncustodial parent's obligation to pay maintenance and child support including any arrears during the period that visitation was denied.

Relocation

A custodial parent may relocate to another state by court order. The Courts determine the ability to relocate on a case by case basis. Courts look at the seriousness of the economic, financial, educational and familial reasons and the effect of the move on the relationship between the children and the noncustodial parent.

Cases are not consistent however. Some courts have allowed a custodial parent to relocate as far as 200 miles away from the noncustodial parent where it was satisfied that the purpose of the move was not to deny the noncustodial parent visitation rights. Other cases have denied relocation at much shorter distances finding that the reasons for the relocation were not serious enough.

New employment by the custodial parent or the custodial's parent's spouse may be sufficient reason to relocate the children. The custodial parent must demonstrate that serious efforts were made to find employment in or near their present location.

Grandparents' Visitation

Under current New York law, grandparent's may apply for visitation rights with their grandchildren where one of the child's parents is deceased or where the child's parents are both living but divorced, where the child's parents are divorced and the child has been adopted by the mother's new husband, and even where the grandchildren are living with their parents as part of an "intact family".

This right to visitation is not automatic however, a court must first conclude that such visitation would be in the best interests of the child. Animosity between the child's parents and the grandparents is not determinative, nor is the child's desire not to visit. Such visitation has been restricted where the child has been adopted and where, in the court's view, such visitation would interfere with the child's relationships in the new family.

Modification of Custody Awards

The standard for custody modification is also the best interests of the child. Courts are generally reticent to change custody awards and require the presence of "countervailing circumstances" as to why custody should be changed or modified. This would require a showing of a change in circumstances regarding the custodial parent's ability to meet the physical and emotional needs of a child.

Modification of visitation awards by the noncustodial parent would require a similar showing of change of circumstances affecting the best interest of the child.


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