Factors Considered For Granting Full Custody
Parents who want to win full custody should consider the following factors that may be determinative in a court of law:
- Best interests of the child: The family court usually determines that it’s best for parents to share custody of a child. A parent looking to win full custody should be prepared to state clear reasons why joint custody would not serve the child’s best interests, such as if the other parent has issues with substance misuse or a history of leaving the child home alone for extended periods.
- Courtroom demeanor: A judge may determine a parent’s fitness for full custody, in part, on the basis of the parent’s demeanor in court. For example, if a parent wants to win full custody, they should avoid interrupting the proceedings and attempt to maintain their composure and avoid angry outbursts.
- Courtroom dress: During a custody battle, a court may consider the parent’s style of dress as a factor in determining whether the parent will win full custody. Parents should wear formal suits and avoid casual clothing.
- Preparation: A judge will consider the level of preparation of a parent looking to win full custody. Preparation includes factors such as whether the parent has an attorney or whether they have concrete documentation to support their position for full custody.
Understanding Residential And Legal Custody Of Children In New York
If you have custody of your children, what does that mean?
If youre just starting the process of divorce or a custody proceeding, you probably think custody is pretty simple, at least in concept it means the children live with you, and the other parent gets to visit with them sometimes. But custody is actually much more complicated than just deciding where the children primarily reside. Most of our new clients and consultations are surprised to hear that New York law differentiates between two types of custody, both of which must be resolved entirely between parents: residential custody, and so-called legal custody.
Residential custody is what most laypeople think of as custody. It is, simply put, how parenting time is divided between two parties. Oftentimes, this means that one parent will be with the children more than the other parent they will be the childrens residential parent. But this does not mean that the other parent is relegated to seeing the kids every other weekend. There is a wide gulf between the every-other-weekend parent and the parent who has exactly equal time, and the non-residential parent may conceivably be with the child 49% of the childs time, to the residential parents 51%. For example, the parties may alternate by week, with one parent getting an extra day every two weeks. The possible schedules are limited only by the parties ability to agree and by the courts creativity.
When Is Sole Legal Custody Awarded In Ny And Nj
Though it was common in years past, it is now extremely uncommon that one parent is awarded both sole physical and legal custody. It happens most often when one parent is deemed unfit to care for the children or to make decisions for them. The non-custodial parent will then be limited to time-sharing visits unless the court finds that supervised visits or suspension of time-sharing entirely is warranted.
If you are the non-custodial parent in a sole custody situation, it is crucial to follow the courts order and make every effort to keep interactions with your ex and children peaceful. If you have time-sharing rights, it is important to exercise them and to speak with an attorney if you believe they are being violated.
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Protect Parental Rights In Bergen County And Rockland County
Parenting plans are entered into every day but that does not mean they should be taken lightly. Once approved, they are fully enforceable and difficult to modify if the other parent is not in agreement. If you do not yet have a plan in place, or need to find out your right to request a modification, speak with the NY & NJ child custody lawyers at Kantrowitz, Goldhamer & Graifman today.
Could The Term Full Custody Refer To A Difference In Legal And Physical Custody
Child custody consists of two components – physical custody and legal custody. Some might mean that full custody implies have both sole physical custody and sole legal custody, while sole custody doesn’t define either. The issue with this is that it introduces confusion, and it is simply easier to state out that this parent has sole physical custody and joint legal custody, or joint physical custody and sole legal custody.
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What Can I Expect From Temporary Orders
This is not a simple answer. Temporary orders are meant to be just that, temporary. However, temporary orders often end up becoming permanent orders, particularly if no problems or complications surface with what is ordered in the temporary order.
What you can expect is if a temporary order is granted that is not acceptable, then strong advocacy must occur to significantly increase your chances that the temporary order does not become permanent.
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What Is De Facto Custody Of A Child
De facto custody is a way of assigning legal custody and physical custody of a child to someone based on the time a child has been in the care of another person and the age of the child. De facto custody can be third-party custody, meaning it is possible that de facto custody can be assigned to someone other than the childs natural parents.
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Factors In Custody Decisions
Regardless of which court hears your custody case, the judge will rule based on the best interest of the child involved.
The parent who demonstrates they can best care for the child will be awarded custody regardless of race, religion, sexual orientation or gender.
Factors the judge will consider include each parent’s:
- Bond with the child
- Ability to provide food and shelter, and meet other needs
- History of crime, violence or substance abuse
Courts prefer that children maintain relationships with both parents. If one parent gets sole custody, the other will receive visitation rights, unless this would jeopardize the child’s well-being.
What Should I Know Before A Custody Trial
Before a custody trial begins, you should pretty much know what the other side will raise in support of their request for custody or against your request for custody. You should also know exactly how to conduct yourself during a trial so that the Judge does not get a bad taste in his/her mouth about you which could affect the Judges decision.
At Cordell & Cordell, your attorney will adequately prepare you for your case and trial.
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Can I Get Temporary Custody In New York
If you have recently arrived in New York state, and New Yorkis not the home state of the child, a federal law called the UCCJEA allows for a person to file for temporary emergency custody in a state other than the home state if:
- the child is present in the state and
- the child has been abandoned or
- it is necessary in an emergency to protect the child because the child, a sibling or a parent of the child is subjected to or threatened with mistreatment or abuse.1
For more information, please see Can I get temporary emergency custody? in our Parental Kidnapping section.
If the childs home state is New York, and you are currently in the middle of a custody proceeding, often times temporary custody orders are issued while the case waits to be resolved through trial or a settlement where a final order will be issued. Note: The term temporary custody is typically used in family court whereas the term pendente lite custody is often used in supreme court .
1 UCCJEA § 204
When Instability Is Enough For Full Custody
You can establish instability on various counts. There may be mental instability, such as hospital stays, depression, anxiety, or other mental health issues that you can show impact the child or parents decision-making.
Theres financial instability, such as loss of or lack of employment. Instability can also come from alcohol and drug abuse, past or future physical absences, and regular relocations for professional or personal reasons.
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Persons Who Can Petition For Child Custody
Biological and legal parents can petition for child custody. However, any other person with a substantial relationship with the child can petition for the custody as well. This includes grandparents, siblings, and other family members. When the decides custody between a parent and someone who is not a parent, a judge will consider if there are extraordinary circumstances to grant custody to the non-parent. Note there are also situations where family members, such as grandparents and siblings, can apply for visitation.
Following The Guidelines For Full Custody
You may feel it isn’t fair for a court to decide full custody based on the criteria above. But since there’s little you can do to change these guidelines, you should follow them accordingly to get your best shot at winning sole custody of your child. For more information about how to win full custody, speak with a qualified attorney in your state.
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How To Present Full Custody As Favorable
All custody isnt wholly a bad thing for the other parent, either. In processes of mediation or discussions outside of the courtroom, you may want to present it as such. Full custody can be affordable, reducing the need to have two homes for the child.
It also allows the other parent to pursue their interests, cuts down on the communication between parent and parent, and eliminates the stress that can come with being responsible partly or otherwise for a child.
If I Have Custody Will I Receive Child Support
It depends. So long as you have more than 50% of the physical custodial time with the child, you will be deemed to be the primary custodial parent permitting you to receive child support from the other parent. If it is exactly 50/50, so long as you earn less money than the other parent, you will be entitled to receive child support from the other parent.
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Do New York State Courts Favor Joint Over Sole Custody
Not normally. It is not usual for the courts of New York State to order joint legal custody unless both parties agree to settle their case with joint legal custody and request that that become an order. Then the Court will make it an order.
Will the Court order joint legal custody if both parties do not agree to it? Usually, they will not.
The leading case in New York on this issue is Braiman v. Braiman 44 NY2d.5884 407 NYS2d 449 Braiman states that where the parties are embattled or hostile toward each other, and if they are unable to work together to make joint decisions, then the courts will not order it.
In the rare instances where the Court has ordered joint legal custody without the agreement of the parties, the Appellate Courts have overturned it.
How To Begin Your Case
The first step in the custody process, whether you plan to go to trial or settle, is to open a case.
New York has two courts that can make custody and visitation judgments: supreme court and family court.
If you’re getting a divorce or legal separation, file in supreme court. Otherwise, file your child custody petition, paternity case or domestic violence case in family court.
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When A Parent Has Been Neglectful
When a parent has been neglectful or when theres a strong chance they could neglect their child, this further supports the argument that full custody is needed.
A child who is being threatened in any way, directly or indirectly, even with neglect raises eyebrows in a courtroom and can strengthen ones case.
What Does It Mean To Have Temporary Custody
If you are concerned about the welfare of a child, you can apply to temporarily have custody of a minor child. Often a parent who is going through a divorce or someone who is not the parent but is concerned about the well being of a child will ask the court if they can temporarily have legal custody of the child. Sometimes, the need for temporary custody of the child is due to the length of time it takes to negotiate and finalize a divorce, while in other instances someone says the minor child is not safe at home and should live elsewhere.
What Is Temporary Custody?
Temporary custody is the legal decision by the court to award physical and legal custody of a minor child to an adult who may or may not be the childs legal parent. In determining whether to award custody, Georgia family law courts will rule in the best interest of the child. In determining what is in the best interest of the child a judge will consider many factors including:
- emotional ties to the child
- ability to care for the child financially and emotionally
- the safety of the home
- stability and continuity for the child
- the mental and physical health of each parent
- the parents history in caring for the child
- any history of physical, sexual or mental abuse
- recommendations of a court-appointed custody evaluator or guardian ad item
- the desires and wishes of children age 11 and older
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Sole Vs Joint Custody
When we refer to “sole custody,” we are typically referring to a court ordered arrangement wherein one parent has both legal and physical custody of the child. The noncustodial parent may have limited visitation, but likely has been determined to be unfit to parent for a given reason. Most custody arrangements are “joint custody,” which generally refers to a shared legal custody even if only one parent has physical custody.
Filing A New York State Custody Case
Whether you decide to hire a lawyer to handle your custody case is your decision. A lawyer will be able to help you file your case with the correct court while advising you throughout the entire process.
If you decide to pursue the case on your own, talk to a clerk at your area family law court to obtain the proper documentation you need to file the child custody case.
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Child Custody Law In New York State
For New York courts to have jurisdiction on your case, the child must have lived in New York for the past six months. If the child is younger than six months, he or she must have been born in New York .
Neither parent has a preferred right to custody of their children in New York. If there is no custody order, either parent can keep the child with him or her. If the case goes to court, the custody decision must be made in the best interests of the child.
Either parent can apply for custody in Family Court. You can attempt to get custody in Supreme Court after divorce proceedings have begun, but you may only have one case ongoing at a time.
The status of primary caretaker of the child is likely to be important in making decisions regarding custody.
The parent who has physical custody of the child when the custody application is made to the court may have an advantage in the courts.
The court can consider where the child wants to live, but does not have to follow the child’s wishes. The older a child is, the more a court will consider his or her wishes.
Parents may share joint legal custody in New York. The court usually will give custody to only one parent if parents are not able to cooperate.
Custody or visitation can be changed if there is a significant change of circumstances that affect the childs interests.
A lack of payment of child support is not sufficient means to refuse visitation. It can, however, lead to the non-paying parent to go to jail.
What Is The Difference Between Full Custody And Joint Custody
The legal term child custody refers to the legal and practical relationship between a child and a parent or guardian, and is generally determined in the event of a divorce or legal separation. State laws regarding child custody and how it is determined vary by jurisdiction, although the main standard for child custody decisions is the childâs best interests standard.
The needs of the child, and what would be in the childâs best interests, are placed above the parentâs preferences. Additionally, the courts will only make child custody decisions if those decisions best benefit the child.
Though there are different types of child custody arrangements, there are two major types that the court will generally consider: full custody, and joint custody. Simply put, full custody refers to one parent being designated the primary custodial parent.
As such, that parent has a majority of the custody time as well as legal rights regarding the child. Joint custody refers to an arrangement in which both parents split physical custody of the child, with one parent possibly retaining legal custody.
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