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Child Custody and Visitation

Child Custody and Visitation Disputes

In New York child custody and support are often the most disputed areas in divorce negotiations as they affect both emotions and money.  The Court determines custody based on what it believes to be in the best interests of the children. This aspect can be the most complicated and controversial component of a divorce in New York. Sometimes children become a bartering tool and their well being gets lost in the game of tug-of-war.

Child custody matters in New York affect children under the age of 18. When the parents disagree about issues of child custody, the New York Court will often appoint an attorney for the child who will conduct an investigation and issue a recommendation regarding child custody and an appropriate visitation schedule.  The recommendation is typically based on their interview with the child and the childs wishes. 

Sole Custody in New York child custody disputes: If the parents are not awarded joint custody, one parent will have sole custody of the children and be designated as the primary residential parent. Sole custody means that a parent has the authority to make legal decisions for the children, without requiring any input from the other parent. The non-custodial parent is awarded specific visitation with the children.

Joint Custody in New York child custody disputes: In joint custody, both parents have legal custody with one parent designated as the primary residential parent. Joint legal custody means that both parents have to consult with each other and share in making major decisions for their children. These decisions include residence of the child, medical and dental treatment, education, child care, religious education, extra-curricular activities, summer camp and recreation.

Shared Custody in New York child custody issues: In shared custody, both parents share legal custody without a parent being designated as the primary residential parent.  Each parent will have specific periods of responsibility with the children. This arrangement gives both parents the right to make major decisions on an equal basis for their children.  Shared Custody also impacts Child Support Calculations .

The New York Courts will not award joint or shared custody unless the parents can demonstrate a level of maturity, willingness and ability to set aside their personal differences in order to decide what is in the best interest of their children.

Grandparents’ Rights to Child Custody

In January, 2004, the New York Domestic Relations Law was amended to give the grandparents of a child residing in New York state custody rights in a case where the grandparents can demonstrate the existence of "extraordinary circumstances". Such an "extraordinary circumstance would be an "extended disruption of custody". This would constitute a prolonged separation of the child and the parent for at least 24 continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the grandparents. The New York Court may find that extraordinary circumstances exist where the prolonged separation is less than 24 months, based upon other circumstances.

Factors for New York Courts Determining Child Custody Award

No one factor is determinative in making a child custody award. The New York courts must weigh and balance the "totality of the circumstances" in making any custody determination. In deciding what is in the child's best interests, the New York court is required to consider many factors, such as:

* The effect of a separation of siblings;

* The wishes of the child, if the child is old enough;

* The length of time the present custody arrangement has continued;

* Abduction or abandonment of the child or other defiance of legal process by one of the parents;

* The relative stability of the respective parents;

* The care and affection shown to the child by the parents;

* The atmosphere in the homes;

* The ability and availability of the parents;

* The morality of the parents;

* The prospective educational probabilities;

* The possible effect of a custodial change on the children;

* The financial standing of the parents; and

* The parents' past conduct.

Additional factors that New York courts consider include:

* The refusal of a parent to permit visitation and/or the willingness of a parent to encourage visitation;

* Unauthorized relocation of the parent and child to a distant domicile; and

* Making unfounded accusations of child abuse.

Where either parent alleges that the other parent has committed an act of domestic violence against the alleging parent or a family or household member of either parent, and the allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child.

A parent's ability to personally devote time to the child and his/her needs is an important factor.

As a matter of policy, New York courts tend to refrain from intervening with respect to the child's religious upbringing. However, courts may consider religion as a factor where a child has developed actual ties to a specific religion, or where a parent's particular religious practices threaten the health and welfare of the child.

Contact Us

During your initial consultation, an experienced attorney from our firm will review with you the critical facts in your case. We believe in starting with your end goals and strategizing backwards to ensure the most efficient and cost effective method of attaining your desired result.

Contact us to see how we may assist with your case.  We can be reached 24 hours a day, 7 days a week at 518-250-4281 or via email at

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