12 Common Child Custody Issues You Could Face
Child custody can be the most contentious issue in a divorce – even more than the division of assets. This is natural. In most other divorce issues, two parties negotiate (or fight) over what constitutes “fair” between them. The issue here isn’t at all what’s “fair,” but what’s best for the health, mental and emotional wellbeing, and education of a third party, the children of a marriage. The father will probably think it’s his in child’s best interest to see him as much as possible. The mother will probably think the same. And both are – probably – right. The job the spouse’s share – or the judge takes on, if a case goes to trail – is to navigate between these truths, between impossible positions, toward the best arrangement for the child.
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New York State does not operate upon any gender bias in these deliberations. Since stability is generally in the children’s interest, especially during a time of upheaval like a divorce, the court prefers to maintain the status quo. This can mean identifying a parent who has been the primary caregiver and favoring that person in custody matters, just as the primary bread-winner would take primary responsibility for child support. A parent who has been largely absent in the children’s lives will have a difficult time suing for joint legal and physical custody during a divorce, as will any parent with a history of domestic abuse or drug use.
Children Having a Say in Custody
A child will have a “Law Guardian” who will stand on equal footing with both parents’ attorneys in the court, arguing on the child’s behalf. In the eyes of the law, a minor doesn’t have the ability – or the right – to determine his or her best interests. Just as a child under 18 cannot leave home without parental consent, so too, in child custody proceedings, the court will not in any case grant an order solely based upon a child’s wishes. That said, the older a child gets, the more weight a court will give that child’s wishes. There are no rules determining this “weight,” however – this is subject to a judge’s discretion.
Where to File for Custody
You can file a petition of custody in any county where either parent resides. If one parent files a petition in a county inconvenient for you, your attorney can file a motion requesting the court to designate that county an inconvenient forum, and, if granted, move the proceedings. If your attorney files such a motion, the court will consider where both parties reside, where the child resides, and where witnesses reside.
False Reports with CPS
You can mention this, and personally testify about the circumstances surrounding a false CPS report, but once CPS has deemed a report “unfounded,” it is not subject to subpoena and you cannot enter it into the record as evidence in a trial, nor will you be able to call a caseworker in to testify.
Changing Your Child’s Name
To change a child’s name after a divorce, you must file a petition in the State Supreme Court and serve the other parent with a notice of that petition. The court will not grant your petition if the other parent objects – no matter what the child wishes. Your child may change his or her legal name when he or she is no longer a minor.
NYS Paternity Rights
If a couple is married when a child is born, New York State law assumes that the husband is the father of that child. If an unmarried woman bears a child, New York State law does not, automatically, recognize any legal father. If parents are unmarried, they may sign an “acknowledgement of paternity,” a form readily available at any maternity hospital. The second option to establish paternity would be for both parents to petition the Family Court for an Order of Filiation. If there is any doubt about a child’s paternity, you should not sign an acknowledgement of paternity, and should instead go through the Family Court.
Obtaining Custody of a Niece or Nephew
New York State courts prefer to keep children with their biological parents. You can, however, obtain custody of a minor relative by petitioning the Family Court and explaining your reasons. You may allege “extraordinary circumstances,” including abandonment, abuse, unfitness to parent, or consistent neglect as grounds for obtaining custody for a niece, nephew, stepchild, or grandchild. The “Extraordinary circumstances” requirement sets a high burden of proof. You will want to contact an experienced family law attorney before attempting to win custody of any child.
Requesting New Law Guardian
Because the court appoints a Law Guardian, or “attorney for the child,” it’s very hard to get these attorneys removed and replaced. The Law Guardian has pledged to put the interests of the child assigned first – your allegations that the attorney is biased in favor of the other parent will not easily convince a judge. You would need to demonstrate gross misconduct to have one of these attorneys removed.
These attorneys will continue to represent your child through any future issues involving Family Court. It’s generally best to let your attorney work with your child’s Law Guardian, rather than spending energy on an unlikely attempt to remove that attorney.
Moving Out of State Before Baby’s Birth
A court in New York State cannot force a child custody case or relocation case before a child is born. If you’re in the middle of divorce proceedings and anticipate a move out of the state, it would be wise to move before you give birth to the child, at which point, if you were to remain in the state, your spouse and the court could effectively “freeze” you.
Moving to Another State with Sole Custody
Sole custody doesn’t immediately allow you to relocate with a child. It will weigh heavily in your favor, but you still need to petition a court for permission to relocate.
Permission to Go on a Trip
When one parent wants to take a child out of the country on a trip, the child will need a passport, and that requires both parents’ permission if they share joint legal custody (which is most often the case). If one parent refuses to allow the child to get a passport, the other parent must go to Family Court and ask for an order waiving the obstructing parent’s right to decide on this issue. The court will rarely deny a parent’s request for a passport.
Decisions About Child’s College Education
Today, many divorce agreements make some arrangement about paying for a child’s college education. However, college tuitions vary widely, and college costs will be hard to predict for young children. If this section of an order or agreement is insufficiently thorough, it can cause issues down the line – if, for example, one parent objects to paying a private college’s tuition. Each parent’s involvement in the process and obligation to pay for a college may be contingent on his or her level of consent to the selected college.
It’s best for you and your spouse to think through this issue together, imagining how you would have approached it if the divorce never happened.
New York State recognizes the grandparent/grandchild relationship as an important aspect of child development. If the custodial parent is refusing you access to your grandchild you may petition the court for an order upholding and enforcing your visitation rights. The court will examine the past standing of the grandparent/grandchild relationship as well as the current best interests of the child when hearing the petition.
If you are seeking legal counsel for an issue regarding child custody, please do not hesitate to contact our office. Let us help you secure the best future for your child.
This educational blog was brought to you by Jean Mahserjian, an experienced Family Law Attorney in Saratoga County, NY.