Law Office of Jeffrey W. Johnson
Law Office of Jeffrey W. Johnson
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When it comes to the determination of custody and parenting time arrangements in New York, the guiding principle is always the best interest of the child, which is a nebulous standard. The court has to consider all relevant aspects of the case, such as which parent has been the primary caregiver for the child, the housing situation of each parent, the desires of the child, reports and recommendations made by the attorney for the child or psychologists, whether there has been a history of ACS involvement, whether either parent has a criminal history, and whether there has been domestic violence between the parents.

The court will have to consider all of these factors and make a decision as to the best interest of the child. There is no hard-and-fast rule when it comes to the best interest standard, so it is very useful to have an attorney who has handled many of these cases and knows how to advocate for his or her client regarding the best interest of the child.

When a divorce is filed, it is typical for one parent to have the child living with them. Often, that arrangement is kept in place while the divorce is pending, but either parent can make a motion to change that situation.

If the court can justify it, they may request forensic reports by a court-appointed psychologist or social worker. This psychologist or social worker will interview the parties, including the children, and review all relevant education and medical records in order to make a recommendation to the court regarding custody and visitation.

Sole Vs. Joint Legal Custody

In New York, there are two types of custody. The first is sole custody, which is when one parent makes major decisions regarding the health, education, and welfare of the child. The other parent must be kept informed and advised of all those matters, given access to medical records, school records, etc., and be able to speak to providers.

There is also joint legal custody, which is when both parents must agree on all decisions regarding the health, education, and welfare of the child. Often, when people refer to “joint custody,” what they really mean is a fifty-fifty split of time with the child, which is joint physical custody.

If one parent wants sole legal custody and the other parent wants joint legal custody, the attorneys will often work out a joint legal custody arrangement with one parent being granted final decision-making authority. This means that the parents must try to reach agreement regarding major issues involving the child, like what school they will attend, what religion they will be taught, and what medical procedures they will undergo. However, if the parents cannot reach an agreement on one or more of these issues, then the parent who has been granted final decision-making authority will have the final say.

Parenting Time Schedules

In most cases, the parents will come to an agreement regarding a parenting time schedule. If the parents cannot reach an agreement, then the court will have to make a temporary determination regarding parenting time. Typically, there won’t be an order of custody while the divorce is pending unless there is a good reason for it (e.g., education-based or medical reasons). In some cases, the court will grant a temporary order of custody to the parent who’s been the main caregiver.

There is a near infinite number of parenting time arrangements that can be established; it depends on the status quo at the time, the attorney for the child’s recommendation, and the judge’s opinion as to what is in the best interest of the child.

The typical arrangement in New York is when one parent has physical custody of the child (i.e., has the child with them for the majority of the time), and the other parent has the child with them on alternating weekends, usually overnights, and potentially a day during the week. Under this arrangement, school breaks, vacations, and holidays are split fifty-fifty between the parents.

Avoiding Court Intervention

Parents can agree to any type of agreement they choose without court intervention—and most attorneys will encourage parties to do this rather than accept a court-imposed order. However, such an agreement would not be enforceable unless it’s a written stipulation signed by the parties and ordered by the court, or an order of the court. In other words, an oral agreement between parents would not be enforceable. That said, an oral agreement would carry some weight should one parent eventually deviate or wish to deviate from that agreement, as it would stand as the status quo.

The Child’s Voice

The child is always allowed to provide input as to which parent they would like to live with or spend the majority of their time with, although this input is never determinative; the guiding principle on such decisions is always the best interest of the child.

There will almost always be an attorney for the child assigned to the case, and that attorney will interview the child. Depending on the age of the child, the attorney will either advocate for what they think is in the best interest of the child or for what the child wants. In New York, once a child is six years old, the attorney for the child is bound to treat them as any other client and to advocate for what they want.

The older the child is, the more weight their wishes will carry. The court is not going to tell a 17-year-old child that they must live with their mother if they have clearly expressed that they would like to live with their father; such an order would be very difficult to enforce without evidence that the father is totally unfit to care for the child.

Calling On Specialists

If either parent raises an issue regarding child endangerment, neglect, or abuse by the other parent, then the court will order an investigation by ACS. Such situations could involve a number of allegations, including drug use or poor living conditions. An ACS case worker will investigate the claims made, which will typically involve interviewing the parents and the child, investigating the homes of each parent, and determining whether either parent has a criminal history or there has been a history of ACS involvement. Based on this information, the ACS will issue a report to the court that states whether they believe there is any danger to the child. An ACS investigation of this sort could occur at any point during a case.

When parents cannot agree on custody and visitation matters, and/or when certain issues exist in a case, the court may order forensic reports, which will be completed by a psychologist, psychiatrist, or social worker. The chosen professional will interview the parents, the child, and anyone else who they believe could provide useful information about the situation. They will also review medical and education records. Ultimately, the professional will write a detailed report containing custody and visitation recommendations to the court. Typically, the court will appoint the professional to create forensic reports, but the parents may have to pay $2,500 or more upfront for their services.

Modifications To Custody And Parenting Time Agreements

Either parent can file for a modification to the custody or parenting time agreement at any time. To do so, they must show that there has been a fairly significant change in circumstances, such as relocation by one parent, or a change in the child’s needs or desires which impacts the custody or visitation agreement.

If the parties don’t agree that there’s been a change in circumstances, then the court can hold a change of circumstances hearing. If the court finds that there has been a change in circumstances, then the court must determine whether a modification to the existing custody or visitation order is in the child’s best interest.

Guardianship In New York State

In New York State, guardianship and custody are essentially synonymous. If someone has guardianship over a child, they make the major decisions regarding the health, education, and welfare of the child. If a nonparent is filing (e.g., sibling, aunt, uncle, or individual with no familial relation to the child), then the court will treat it as a guardianship petition; if a parent or grandparent is filing, then the court will treat it as a custody petition.

In practice, the only major difference between guardianship and custody is that guardianship of a child holds until the age of 21 and custody of a child holds until the age of 18. Aside from that, the standards regarding who receives guardianship or custody are basically the same.

If a nonparent wins guardianship of a child, then they will have the authority to make decisions regarding the child’s health, education, and welfare. This, however, does not mean that the parent’s parental rights are terminated; the parent would still have legal rights to visitation and child support obligations.

In addition, an award of guardianship to a nonparent is not necessarily permanent, as the parent can attempt to regain custody of the child. To accomplish this, the parent would have to show that there’s been a change in circumstances, and that it would be in the child’s best interest for custody to be transferred back to them.

For more information on Custody And Parenting Time Arrangements, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 557-9767 today.