child custody client with son

Child custody cases can be the “biggest” and most challenging cases that a Family Lawyer has to deal with. In New York Courts, it is not unusual for a custody case to take over a year to be resolved. I have been on a few cases that have lasted over 3 years.

Most child custody cases do not involve complicated or hyper technical case law or statutes, and there are a handful of legal standards which are applied. The most common legal standard “best interests of the child” is every general and broad,and encompasses practically everything about the parents and the child or children, and can encompass everything about their whole lives.

When a custody case is between a parent and a non-parent, there is a different legal standard, as well as a different burdent  of proof. In this situation, it is the non-parent who has the burden to prove that so called “extraordinary circumstances” exist, in order to prefvail over a prent. Extraordinary cirucmstances include pesistent neglect, abandonment, and asso a prolonged separation between the child or children and the parent, coupled with some other factor or factors.

The law has been evolving on these types of cases, and seems to be heading towards New York Courts finding exceptional circumstances just based upon a prolonged separation.

When the case involves a parnt against a non-parent, the exceptional circumstances is applied differently. If the parent relinqueshes care and custody to the grandparent for a period of 2 years or more, under the so called “grandparent statute”, this is  consitutes extraordinary circumstances. The important phrase to focus on is ” voluntarily relinquishes care and custody”.

Many cases involve one parent against the other, but one of the parents already has a custody order, or the child or children have been living with one parent for a significant period otf time. In the first situation, the parent who does not have the custody order has the burden to show firstly, that there has been a significant change of circumstances, and then that changing custody would be in the best interests of teh child or children. Many litigants, and even many lawyers, do not realize that the change of circusmtances required must involve issues that the custodial parent has caring for the child, and will not be found when the non-custodial parent lost custody because of his or her own issues, but aas now rectified his or her issues.

The second situation, where there is no prior order of custody but the  child or children have been living with one parent for a significant period of time, is in many respects, dealt with similarly than the first. In these situations the courts can consider that one parent has so called “de facto custody” and can treat the case in a similar fashion as cases where one parenet has an actual order of custody. The main difference is when the parties had been living together with the child or children and although one parent now has the children living with him or her, there has not been “too much” time since the separation.

Perhaps the most difficult custody cases for the Courts to deal with are cases where there has been no prior custody order, both parents are fit, and they had been living together with the child or children for the childrens’ entire lives, except for a brief period of time since the parents separated. This could happen when one parent leaves the home with the children and the other parent immediately files a custody case.  In these kinds of close cases, the courts will often use the wishes of older children as a way of deciding custody, or they will order a  forensic custody evaluation.

As a gseneral rule, the Family Court will not entertain custody or visitation cases when the parties are still living together, however if there is a divorce action, it is not unusual to have the parties still living together when the divorce is filed, and in some cases, they will continue to live together after the divorce,a nd the divorce court will have to deal with the issue of custody before it can grant a final divorce.

Many custody cases involve issues of so-called joint custody. Joint custody is an imprecise term, and is often consfused with the term “shared custody”.  Under New York Staet law, there are two types of custody. Physical custody, or primary residential custody, is about who the child or children live with the majority of the time.

Joint legal custody is about which parent has the power to make major decisions about the children. New York state is quite different than most other states when it comes to joint legal custody. In many states, there is a presumption that both parents will make major decisions together, so that it can be said that there is a presumption in favor of joint legal custody. In New York, it can be said that there is a strong presumption against joint legal custody. The New York Courts reason that making joint decisions is only possible when the parents have an amicable relationship with good communications, and it is likely that they will be able to come to agreement over major issues regarding the child or children on their own without having to involve the court.

Over time, this has come to mean, for the majority of New York Courts, that joint legal custody is only ordered upon the consent of both parents, at least when it comes to the initial custody order. There have been cases where there was a prior order on consent for joint legal custody, and one parent wishes to modify it  subsequently, and the courts have refused to do so because there has been no significant changes since the prior consent order.

Many custody cases are heard in the FAmily Court, which hears most cases filed after a divorce , and all cases which involve unmarried parents or non-parents.


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