Custody/Visitation

Child custody and visitation are issues which can be addressed within a divorce proceeding filed in the Supreme Court or can be addressed as a separate and distinct issue in the Family Court, typically in the county where the children reside. Family Court is an option available to parents who seek an initial order of custody/visitation or enforcement or modification of an existing order, typically when divorce is not an issue.

Child custody and visitation issues can become emotionally challenging for separated parents as they struggle to strike a balance between what is best for the child and their individual parental rights to the care, custody and control over their children. It becomes more difficult when the parents cannot agree on custody and visitation and require judicial intervention to resolve such delicate issues. Absent glaring allegations of unfitness of a parent, courts will go to great lengths in attempting to have the parents resolve such issues pursuant to a mutual agreement. This is true because courts generally believe that the parents are in the best position to make such crucial decisions. In addition, they are aware that a judicial determination of custody can be expensive, lengthy and adversely affect the child.

Types of Custody & Visitation

There are many terms used to describe different types of custody arrangements. Custody typically involves one of the following arrangements: joint custody, legal custody, sole custody, split custody and shared custody. 

In practice, joint custody of the children is the most common type of custodial arrangement, whether chosen by the parents through a written agreement or pursuant to a court order.  Joint custody however, is not what most parents think. While it could mean that each parent has full access to the children 50 percent of the time, it typically does not. Such situation would be considered a split or shared custody arrangement and unless the children are very young, this type of arrangement is rarely successful. Joint custody typically involves a decision to allow one parent to be what is called the custodial parent and the other parent the non-custodial parent.  The custodial parent is typically the parent who is the primary caretaker on daily basis, usually during the week, Monday thru Friday when the child is attending school.  The other parent is considered the non-custodial parent.

The non-custodial parent is allowed “visitation” with the children, which has now become known as “parenting time”. A typical arrangement for parenting time allows the non-custodial parent to have the children on alternating weekends, one day during the week and liberal phone and internet access. The parents also typically divide holidays, birthdays, school breaks and summer vacations. This type of schedule is typically reduced to a written agreement called a parenting plan which is made part of an overall custody agreement. Such agreements can be custom tailored to the individual needs of the children and the schedules of the parents.  If an agreement in good faith cannot be reached, the Court will decide the issues of custody and parenting time.

Joint custody for the most part concerns itself with the decision making responsibility of both parents and the right to be jointly involved with major decisions for the children. This right to make decisions is also referred to as legal custody. So when both parents share decision making authority they are said to have joint custody, notwithstanding that one parent is considered the custodial parent.   

As to decision making authority, if the parents cannot agree to what extent each other should be involved with a specific type of decision, the court will decide and based upon each parent’s individual traits, talents and experiences will allocate certain types of decisions to one parent over the other. This is known as “carving out spheres of decision making authority.” 

Sole custody is an arrangement when one parent, typically the custodial parent, has the exclusive right to make decisions for the children without having to consult with the other parent.  This type of situation is appropriate when one parent is unavailable or unwilling to participate in the child’s upbringing and when the parents cannot get along together.  

Child custody and visitation proceedings can be emotionally challenging. If an agreement is not reached, the parents will embark on a journey of litigation that will ultimately result in a judicial determination. Courts will base their decision on a variety of factors under the ever-evolving “best interests of the child” standard. The factors considered by the court include, but are not limited to the following:

• which parent has been the main caregiver/nurturer of the child
• the parenting skills of each parent, their strengths and weaknesses and their ability to provide for the child’s special needs, if any
• the mental and physical health of the parents
• whether there has been domestic violence in the family
• work schedules and child care plans of each parent
• the child’s relationships with brothers, sisters, and members of the rest of the family
• what the child wants, depending on the age of the child
• each parent’s ability to cooperate with the other parent and to encourage a relationship with the other parent, when it is safe to do so

Whether you intend on resolving your custody and visitation issues by an agreement or through a judicial determination we can help.

At the Law offices of David Smoren, PLLC we have successfully handled all aspects of child custody and visitation matters, including modification and relocation cases for our numerous clients.  Whether it is related to a divorce proceeding, separation agreement or Family Court matter we have the experience to help you. 

Call us today at 718 225-6700 for a free phone consultation, or to arrange for a comprehensive office consultation to discuss your options or simply post a comment or question on the contact form.