Uncommon Child Custody Issues in New York
Child custody is one of the more difficult issues when it comes to divorce and separation. There must be a provision for the custody of children aged 18 years or younger. Children are not emancipated unless they are 21 years old in New York state. However, a court can only issue a custody order for children who are 18 years old or younger.
When your attorney addresses custody, they must resolve a number of questions and issues.
- Where will the children live?
- Will they have a primary residence?
- Or will they share two residences one with each parent?
- Who will be making decisions for the children?
- What will the regular parenting schedule be?
- Will there be different one for the weekdays and weekends?
- Will there be a different holiday schedule?
It is important for everyone to understand that family and matrimonial law is not one size fits all. While there are several schedules that have been glamorized for a non-custodial parent such as the alternate weekend schedule, schedules can run as many options as there are parents. It ultimately is about fashioning a schedule that practically meets the needs of your family while maintaining the children in a safe and stable environment.
However, from time to time, there arise certain special circumstances that very few people know to prepare for. The following sections are meant to educate you about issues that may crop up, that you should educate yourself about and prepare for proactively in the eventuality these questions arise down the line.
Grandparents’ Rights if a Child is Being Withheld
A grandparent may petition to a court to ensure that they have visitation with their grandchild. The legislature reasoned that the grandparent-child relationship is significant to the development of a child. That being said, the court will take a two-step analysis in determining whether or not visitation should occur between a grandchild and a grandparent.
First, they will look at whether or not that grandparent has standing to seek the relief from the court. There are a number of factors that are considered including the ongoing and substantial relationship between the grandchild and the grandparent from birth until termination of the visitation. Secondly, the court will consider the best interest of the child.
- A grandparent can petition to a court to ensure they have visitation rights with their grandchild(ren).
Obtaining Custody of Your Niece or Nephew
It is usually very difficult for a non-parent to obtain custody of a child who is not their biological relation. That is because the laws of New York state give very clear preference to biological parents. Therefore, if you are looking to gain custody of a child who is not your biological child, including your niece, step-daughter, granddaughter, or any child you are not an immediate blood relative to, you would need to petition the family court for custody.
In that petition, you must allege extraordinary circumstances. Extraordinary circumstances are a very hard standard to meet and I recommend consulting and working with an attorney in filing this sort of a petition. The sorts of facts that can sometimes aid in this sort of argument are the abandonment of the biological parent of the child in question, the unfitness of the biological parent, persistent neglect of the child by the biological parent, or general unfitness.
- It is possible to obtain custody of a niece or nephew in extenuating circumstances, provided it is in the best interest of the children.
Relocating Unborn Babies
We’ve confronted a number of relocation custody cases where our client has not yet given birth to the child. They ask us, “Is it ok for me to leave the State of New York at this point in time?” The answer is yes. A court cannot assess or address a custody case or a relocation case until your child is born. If you think there is a likelihood that you may want to move to another state, the wise move then is to move before your child is born.
- You can relocate with an unborn child because the court cannot assess a custody case till the child is born.
When an Ex Does Not Follow Child Custody Orders
If your ex isn’t following your order of custody as issued by family court, you can apply in the family court to enforce that order, through a petition for enforcement. You can also seek remedy through the family court if your order of custody was made through a judgment of divorce, so long as the Supreme Court didn’t retain exclusive jurisdiction. In most cases – at least locally – the Supreme Court does not retain exclusive jurisdiction over custodial matters, so you can also apply for remedy in the family court.
To succeed on an enforcement petition, you must present a valid existing order of custody to the court and show that your ex failed to obey that order. The court has many remedies available to punish your ex for disobeying the order.
- Enforce the custody order through a petition of enforcement in the family court.
When an Ex Won’t Let Child Go on a Trip/Holiday/Vacation
If you plan a trip that requires a passport and your child’s other parent will not consent to the issuance of a passport – or refuses to give you the passport if they have it – you can ask the family court to address that issue. It is important to address these issues well in advance of your anticipated trip to ensure that you have the required documentation for wherever you plan to go. A court will rarely deny a parent’s request for a child’s passport in aid of a planned trip.
- You can ask the family court to address this issue.
If you or a loved one is facing custody issues or are otherwise unhappy with your current custody order, please contact the experienced attorneys of Jean Mahserjian, Esq.. PC. to help you sort out the matter.