If you are filing for divorce and have children, you may be wondering how custody will be determined, what your rights will be, and what happens if there is a dispute between you and your ex.
What is custody?
Custody can be granted to you, your spouse, or both. It requires that you take responsibility for the care of your child.
There are different types of custody that can be granted. Physical custody is where the child lives and legal custody grants the right to make decisions regarding the child.
In New York, you and your spouse have the same rights to your child unless a custody order is issued by the court.
How do I get custody of my child?
You can apply for custody in Family Court. Since you cannot have more than one case open at a time, you will have to file for custody before you file for divorce or wait until the divorce is settled.
Another important factor to remember when filing for custody, is that your child must have resided in New York for at least six months prior to the filing.
How does the court decide who gets custody?
The court will make its decision based on the best interests of the child. The court will consider which one of you is the primary caretaker, where your child currently lives, and which of you will provide the best environment for your child.
What are visitation rights?
If you are granted physical custody of your child, the court will usually give visitation rights to your spouse. This often is scheduled for every other weekend, every other holiday, and possibly one night of visitation in the middle of the week if you and your spouse live within a reasonable distance of each other.
Visitation can be denied if your spouse cannot provide a safe environment or if the visitation would be detrimental for your child.
It is possible to petition for a change in custody or visitation. If you or your spouse were granted visitation and want to have the order changed, you will have to prove that your circumstances have changed enough to support the petition.
What if the custody order or visitation is violated?
If your spouse fails to obey the custody order or visitation rights, then you have the right to file a petition with the court alleging the violation. The court will hold a hearing and issue sanctions against your spouse.
This could result in a limitation of future visitation or even monitored visitation where a third party is required to be in attendance when your spouse visits your child.
If you are considering filing for custody of your child, it is important to understand the process and your rights. For advice concerning this matter, contact an attorney experienced in family law.