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FAQ Regarding Child Custody

Q: Who gets custody of the children?

A: If the parties are in agreement with regard to the issue of custody, they can enter into a written Stipulation of Settlement which provides a detailed explanation of all aspects regarding custody and visitation. This agreement would list what holidays, birthdays, and other events each of the parents would be entitled to spend parenting time with the children.

Should the parties not agree on the issues of custody and visitation, these issues need to be determined either through a custody/visitation proceeding in the Family Court or in a divorce proceeding in the Supreme Court. Courts will look into what is in the best interest of the children when making decisions concerning who receives custody. Today, joint custody with each of the parents having significant parenting time with the children is a common solution to custody and visitation issues.

Q: What is the difference between sole custody and joint custody?

A: All issues involving custody need to start off with a definition as to what is legal custody and what is physical custody. Legal custody is when there is a Court Order either from the Family Court or the Supreme Court, in the State of New York, authorizing one parent to have custody or authorizing both parents to have joint custody of the children. Physical custody refers to the practical non-judicial aspect of the child simply living with one parent. This has no legal or binding effect. The parent that spends more than 50% of the time with the children is usually designated the primary residential custodial parent. This is important with regard to issues concerning school districts. School districts usually ask which parent is the residential custodial parent of the children to determine where the children should be attending school.

Q: Who, if anyone, pays child support in joint custody situations?

A: In joint custody situations, one parent still has to pay child support pursuant to the New York Child Support Standards Act. The non-residential custodial parent pays child support to the residential custodial parent. This is true even if the children spend 50% of their time with each of their parents.

In cases where there is an even split of time each parent spends with the children, the courts in New York have ruled the parent whose income is the higher of the two is considered the non-custodial parent. This parent must pay child support pursuant to the New York Child Support Standards Act to the other parent. In certain limited circumstances, the parents can, pursuant to written agreement, waive child support payments.

Q: If a parent refuses to pay child support is he or she still entitled to visitation (parenting time)?

A:Yes! Child support and visitation are completely separate issues. Paying child support is not a prerequisite to having visitation (parenting time) with the children of the parties. The failure of the non-residential custodial parent to pay child support cannot be a basis for denying him or her visitation (parenting time).

Q: Do children have a say in who they want to be the residential custodial parent?

A: Children have input as to who they would like to reside with. In custody cases in the Family Court as well as divorce cases in the Supreme Court, if the parties cannot agree on who shall be the residential custodial parent of the children, the court will appoint an attorney to represent the children. This attorney will meet with the children and present their point of view concerning the issue of custody to the court. If the children are very young, the court will take into consideration their age with regard to the weight it gives concerning their requests for who they would like to reside with.

Q: Can Custody Orders be changed or modified?

A: Custody Orders, in the State of New York, are subject to modification. The party seeking to modify a custody order must show there has been a substantial change in circumstances since the prior Custody Order was entered. The Court will determine custody, if there has been a substantial change in circumstances, based on what is currently in the best interest of the children.

Q: Do grandparents have rights to visit with the children and/or can they ask for custody of the children?

A: The State of New York does not recognize an automatic right for grandparents to have visitation with their grandchildren. Grandparents who want to see their grandchildren can file a petition in the Family Court. Under certain circumstances, if neither of the natural parents are acceptable options to take care of the children, the Family Court can grant an application by the grandparents to have custody of the children. Although grandparents can obtain visitation from the Family Court with their grandchildren, this can sometimes be a difficult legal undertaking. Grandparents should always retain experienced attorneys to represent them in these legal proceedings.

Q: Who decides custody if the parents can’t agree?

A: In the event the parents can’t agree on who receives custody, a judge will decide this issue. In both Family Court custody proceedings and Supreme Court divorce cases where parents are unable to work out custody between themselves, they will have to present all issues involving custody to the judge hearing the case. The judge will render a decision concerning custody and visitation.

It is usually in both parents best interest to work out an out of court resolution of the issues concerning custody and visitation. This is true because this type of agreement can be customized to meet each of the parent’s schedules and needs. A decision made by a judge will have less of a cookie cutter custody/visitation plan.

Q: What is supervised visitation and when does this occur?

A: If a court has concerns regarding the health, welfare and safety of the children, the Court, whether it be the Family Court in a custody proceeding or the Supreme Court in a divorce proceeding, can Order that one of the parents have supervised visitation. Supervised visitation allows the parent to see the child in the company of a third party who supervises the visitation between the parent and the children. Supervised visitation is ordered in situations where there are allegations of child abuse, child neglect, and/or there are outstanding Orders of Protection involving the parents and/or the children.

Q: Can the custodial parent move the children out of New York State?

A: If there is a Custody Order by a court concerning the children, it will be necessary for the residential custodial parent to obtain a court order to move the children out of state. If both parents are in agreement to allow the children to be moved out of state, a written agreement can be entered into by the parents and so ordered by the court. This will avoid a hearing or trial on the issue of one parent’s relocation out of New York State. These types of proceedings are referred to as “relocation proceedings.” It is difficult to obtain court orders for a parent relocate out of New York State if the relocation has a negative effect on the other parent’s visitation (parenting time) with the children.