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Child Custody and Visitation
Working out a parenting agreement that covers child custody and visitation can be difficult, especially when there is animosity between parents. Whether you're recently separated and looking to learn the basics of types of custody or you've had an open case for years that needs modifications due to life changes, you can find resources here. FindLaw's Child Custody and Visitation directory contains information about many local New York attorneys who can help you through your child custody and visitation case.
What Is Child Custody?
Child custody refers to a situation in which a parent (or parents in cases where there is joint legal or physical custody) is charged with the responsibility of raising and protecting their child. During bitter divorce or separation proceedings, or in cases where abuse is alleged to have occurred (either against the child or against a spouse, or both), custody hearings may be brought to court.
What Is Visitation?
Visitation refers to the schedule set out (either mutually by the parents, or by the order of the court) by which the noncustodial parent may be able to see their child. In some cases, there may be zero visitation allowable at the discretion of the custodial parent or the courts, typically in cases of abuse.
Visitation can be supervised or unsupervised, depending on the context of the visitation agreement and schedule, as well as the relationship shared between the custodial parent and the noncustodial parent. Supervised visitation is strictly monitored from a legal perspective, and any violations of agreed-upon or mandated supervision may result in the loss of visitation.
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What Do Judges Look For in Child Custody Cases?
Custody can be determined by the parents themselves in non-aggressive or non-acrimonious divorces or separations free of abuse or other aggravating factors, or by the courts themselves in cases where neither parent can mutually agree to terms beforehand.
If a custody case proceeds to court, the judge will consider things such as the child's welfare and best interests. The judge will look at the health and habits of both parents, their ability and history of being a primary caregiver, their living arrangements (new romantic partners, suitable quarters for a child, environmental concerns), and so on. The wishes of the child may also be given some weight, depending on the age of the child and the circumstances surrounding the case in question.
How to Change Custody and Visitation Terms
Custody and visitation terms are easy enough to change in amenable arrangements where both parents are on speaking terms and fine with moving the schedule around. Some paperwork may be involved via each parent's respective attorneys if there is a formalized schedule that needs to be updated.
In more contentious cases, custody and visitation terms may be changed by court order, generally requiring a hearing from both parties. The reasoning behind any potential custody or visitation change (a change in job hours, ability to take care of a child, living environment, allegations of abuse or similar) may be considered, and the opposing party will have the opportunity to defend themselves against any such claims as well as to reiterate their own stance.
What Are the Different Types of Custody?
There are two common types of custody in terms of parental rights and the best interests of the child: sole custody and joint custody. Beyond this, there are also two different categories in which custodial rights can fall — physical and legal.
- Sole custody refers to situations in which it is determined that it is in the child's best interest for one parent to remain in physical or legal custody (or both).
- Joint custody, by contrast, describes scenarios in which both parents are entitled to either physical or legal (or both) custody of a child, involving set scheduling and honest negotiation as to potential legally material choices being made on behalf of a minor.
- Physical custody is as it sounds, where the parent retains actual, physical custody of the children. Parents with sole physical custody of a child do not necessarily have to allow visitation from other parents, although courts may determine that such visits are in the child's best interests (or not). In some situations, courts need not make a judgment, as both parents can come to an agreement on their own as to any potential visitation schedule.
- Legal custody is a different matter entirely, and this term refers to a parent (or parents who share joint legal custody) who is entitled and empowered to make decisions for the child at the center of a custody case. Which school to attend, which religious ceremonies or places of worship to patronize, and other important life decisions are made by the parent (or parents) who hold legal custody.
How to Obtain Custody of Your Child
In most states, family courts determine child custody arrangements based on what is in the best interests of the child. The courts look at a number of factors in making this determination, such as:
- The parents' desire and ability to care for the child.
- The emotional bond between the child and both parents.
- The adjustment needed if the child has to move to a new area.
- If the child is old enough, the child's wishes.
Frequently, parents or other adults who have raised a child will be required by the court to take part in mediation. In mediation, you can discuss what you want, any problems you've had exchanging the child from one home to the next, and anything else that's relevant to the situation. Hopefully, you can come to a resolution everyone can live with. Otherwise, the judge may make a parenting plan that neither parent is happy with. However, it's important to note that if there was domestic violence in your relationship with the other parent, you may be able to skip mediation.