Answers About Child Custody From An Experienced Family Law Attorney
Custody disputes naturally raise many questions about the legal process and the implications of taking your case to court. Attorney Jeffrey DeRoberts has more than 25 years of experience with New York child custody law and understands the nuances of the family courts in Onondaga County.
If your question isn’t answered in the frequently asked questions below or if you need legal representation, call our experienced Syracuse lawyer at 315-479-6445.
How do the courts decide which parent gets custody?
When parents are not able to agree on custody arrangements, a family court will determine custody. The New York custody statute dictates that “the best interests of the child” should be the overriding factor. The judge may consider input from the parents, social workers, an appointed guardian ad litem for the child, and other witnesses.
What is the difference between legal custody and physical custody?
Legal custody refers to the right to make decisions about the child’s education, health care and religious upbringing. Physical custody, or residential custody, refers to day-to-day care and supervision of the child.
What is the difference between joint custody and sole custody?
Joint custody is a shared arrangement, while sole custody means one parent is granted exclusive authority. The New York courts typically award joint legal custody, meaning both parents participate in key decision-making. Joint physical custody is also common, but it does not necessarily mean 50-50. Usually, one parent is granted primary physical custody and the other parent has frequent visitation or “parenting time.” Sole custody (physical or legal) is rarely awarded unless one parent poses a danger to the child’s well-being.
Do the courts usually give custody to the mother?
On paper, judges should not be biased in favor of the mom. In reality, mothers traditionally (and still) provide the majority of direct care, especially of younger children. That being said, a stay-home dad or involved dad deserves equal consideration in deciding primary custody, if the child is better served.
Can parents decide custody out of court?
Yes, if the parents can agree on shared decision-making, division of parenting time and other details of co-parenting, they can submit their plan to the court for approval. However, child custody (or child support) cannot be dictated in advance by a prenuptial agreement.
Can a custody order be changed or reversed?
Yes, either parent can request a custody modification if there has been a “substantial change in circumstances.” For example, one parent’s work schedule may change, or an older child may wish to live with the other parent. The court can sign off if the parents agree to the modification, or it may be necessary for a judge to rule in a modification hearing.
Can the parent with primary custody move away with the children?
Parents are free to live wherever they want, but relocating children is a different story. The custodial parent must notify the other parent and get permission from the court. This is essentially a custody modification. The relocating parent must demonstrate that the move is in the child’s best interests and not simply to deprive the other parent of a relationship with their son or daughter. If authorized, the court may award additional visitation to the noncustodial parent around holidays and summer vacation and order other changes to the custody and child support orders.
Can a parent refuse visitation if the other parent stops paying child support?
No. In the eyes of the court, these are separate issues. Withholding visitation is a dangerous game to play. A judge may order makeup visitation time or even modify the custody order. There are other remedies, such as wage garnishment and contempt of court proceedings, to compel a parent to pay child support.
Other interference with visitation rights, such as failing to make the child available during scheduled times, can also result in sanctions against the custodial parent.
When will a court prevent visitation or order supervised visitation?
The law presumes that children benefit from having both parents involved in their lives. The courts are hesitant to deny or terminate visitation rights unless there is compelling evidence that one parent poses a threat to the child’s well-being. Supervised visitation may be ordered when a parent has been abusive in the past or if the parent has not previously been involved in the child’s life and is seeking to establish a parental relationship, as in a paternity situation.
We Are Here To Answer Your Custody Questions
Custody disputes require attention to detail and knowledge of the laws of New York to achieve a favorable outcome. Attorney Jeffrey DeRoberts takes the time to discuss the child custody process with you and answer your questions honestly.