New York Family Court Act Article 6: Custody Visitation and Guardianship

A Custody, Visitation or Guardianship case in New York Family Court deals with establishing who will be responsible for the care and control of a child, where a child will primarily reside, and the extent of access granted to a non-custodial parent or other similarly situated person. The rules and procedures for a Custody/Visitation case are governed by New York Family Court Act, Article 6, but due to the complexity of the law after reviewing the statute you should consult with your Family Court lawyer to secure a practical understanding of the same. A parent, grandparent or a person with a significant relationship with a child can file a Custody/Visitation or Guardianship petition in Family Court. As in most Family Court cases, a copy of the petition and a summons must be personally served on the other party, or "Respondent." The rules and regulations as to form and process for these Custody/Visitation petitions are found in the Family Court Act, Article 6, most critically Section 651.

Order of Custody and Consent: Agreement by Parents or other Parties

If the parties can agree on a Custody/Visitation arrangement, the judge or referee can enter an Order of Custody on consent, and no trial is required. An Order of Custody on consent is an Order issued by the presiding judge in New York Family Court that typically establishes a custody and visitation arrangement that has been agreed to by the parties. The Order will typically specify which parent is to have physical custody and legal custody, or if either or both forms of custody are to be shared. The order will also typically specify a visitation schedule for the non-custodial parent that is agreed to by the parties, or the order may allow for visitation on an ad hoc basis, or "as agreed to" by the parties through their respective attorneys. Typical arrangements include the child primarily residing with one parent, known as sole physical custody, with regularly scheduled visitation with the other parent, known as parental access. This visitation schedule can be almost anything, but a typical arrangement would include every other weekend and one night during the week every other week with the non-custodial parent. Whatever the terms may be, your child custody lawyer and Family Court attorney can advocate for an Order of Custody that is most beneficial to you and your child.

Physical v. Legal Custody of a Child

Physical custody, or what parent the child lives with, should not be confused with Legal Custody, or the right to make decisions regarding the child's education, medical care, activities and other issues relating to the child's well-being. Ideally, the parents with the assistance of attorneys versed in Family Court custody laws and issues, can work together and have Joint Legal Custody, meaning that they collaborate and come to an agreement on major issues of this kind. If the parents cannot work together in this way, then Sole Legal Custody will be granted to one of the parents, typically the parent with Physical Custody. Certain safeguards can be put in place, however. For example, the Family Court can require that the parent with Sole Legal Custody accept input from the non-custodial parent, engage in productive conversation regarding these important issues to the extent possible, keep the non-custodial parent informed about these issues and decisions, and attempt to come to an agreement when possible. The parent with Sole Legal Custody will typically have final decision making authority if a decision cannot be agreed upon. Again, to best protect either parent or guardian, it behooves those seeking custody in any capacity to consult with and retainer a Family Court attorney who can best advocate on your behalf and protect your rights and relationship with the child going forward in life.

No Agreement Between Parents: The Hearing or “Trial”

If the parties cannot agree on a custody and visitation arrangement, the Family Court will schedule a fact-finding "Hearing," at which the parties will present any testimony or other evidence they choose, and the judge will make a ruling and decide how custody and visitation should be established at a Dispositional Hearing. A judge may also order an investigation from a social services agency such as Child Protective Services (CPS) or Administration for Children's Services (ACS), and the judge can consider the report generated by that agency. The judge will ultimately rely primarily on what the judge believes is in the best interest of the child in rendering his or her decision and will issue a decision and order regarding the granting of physical custody, legal custody and parental access as well as any other related issues. It is of critical import to understand how the courts and laws define and interpret this “Best Interest of a Child.”

There is no firm definition of "best interests of a child." These cases are highly fact-specific, but there are a number of factors that courts will consider in determining what is in the best interests of a child. These include the age of the parents, alcohol and/or drug use, the availability of the parents, disabilities and physical health, any history of domestic violence, any prior informal custody arrangements, prior written custody arrangements, the financial resources of the parents, prior child abuse or neglect, the results of any court-ordered forensic evaluations, the home environment of each parent, the opinions and position of any law guardian or attorney for the child, any marital fault, mental and emotional stability, the parents' behavior in court, and the preferences of the child. Simply, the factors are many and weighed subjectively. It is imperative that your custody attorney be well versed in all of them.

Modification and Enforcement Petitions

After an order has been issued by the Court, either party may file a petition to have that order modified at a later date, but there must be a substantial change in circumstances since the first order was issued for the Court to entertain the modification petition. Either party may also file an enforcement petition, essentially alleging that the other party is not complying with the Court's order. If the judge finds that the allegations are true, the judge may change the order and/or impose sanctions on the non-compliant party.

Whether you are fighting for custody or visitation in Rockland County, Westchester County, Manhattan, the Bronx, Queens or elsewhere in New York State, it is important to have an attorney who is compassionate and zealous in your pursuit of your rights.

Call the New York family law lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.

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