New York Child Custody Issues

The Components of New York Child Custody

When most people hear the term Custody, they assume that it means where a child will live after a Divorce or Separation. In New York, Custody means much more. The best way to understand the legal concept of Custody is to think about all of the complexities of raising your own children with your partner. Where the children sleep at night is far from the only issue you encounter on a daily basis. True parenting involves much more. So too does Custody. Just because you and your partner will no longer be living in the same household, does not mean that the child-related issues will change. All of the issues that existed before the Separation or Divorce will continue after. The challenge is in determining how you and the other parent will arrange daily parenting responsibilities as well as time with the children.

Custody is comprised of two separate and distinct components. Separating or divorcing parents must determine how important decisions will be made for their children when the parents live in two different households. In intact families, issues such as what school the children will go to or what doctor will treat the children are either made by one parent or by both parents together. During or after a Separation or Divorce, one or both parents will make those decisions. How that happens depends on who has Legal Custody. Legal Custody is the right to make important, legal decisions for your children. It can be granted to just one parent (Sole Legal Custody) or both (Joint Legal Custody).

Joint Legal Custody does not work for all families, even those where the parents previously shared decision making for their children. To determine if joint legal Custody can work for you, you must decide whether you and your spouse will be able to agree on the major decisions pertaining to your children. If you and your spouse are so estranged that you are unable to rationally and calmly communicate, joint legal Custody will not work. Courts in New York operate on that principal. If you and your spouse have not entered into an agreement regarding Custody, a New York Court will rarely Order joint legal Custody if the parties are at war.

There are a number of practical issues to be considered when addressing the issue of joint legal Custody. The term joint legal Custody is very important to many parents. Even when the parties are not able to get along, parents will often insist upon a joint legal Custody arrangement. The majority of Custody cases are negotiated in an agreement. The current trend in negotiated agreements is to accommodate the parents and state that the parties will have joint legal Custody.

The practical effect of negotiating a Joint Custody arrangement does not ensure that the parties will actually ever make decisions jointly. If the parties cannot agree, the party who has primary control, or Primary Physical Custody of the children, will often make those decisions. The Court system rarely has a remedy to offer the parent who is left out of the decision making process. Judges do not want to micro-manage the families appearing before them. Litigation that is commenced after a parent refuses to engage in joint decision making rarely results in a workable or acceptable resolution. At times, it seems that the only rational response that the Court system can make is to direct that the parties engage in some sort of shared parenting or custodial counseling. There is, however, no guarantee that that process will work either. The bottom line is that it takes two concerned and committed parents to make a Joint Custody arrangement work. When that happens, if you can make it work the children will benefit. When it does not, If you cannot make it work the attorneys make a lot of money, and you and your children will suffer. The most significant result of parents engaging in warfare over the children is the effect upon the children. When parents can focus on their children’s well being and emotional health, they may be able to put aside their own emotional issues and work with the other parent. Many people simply cannot or will not do so. While focusing on their own emotional needs, they will negatively impact their children in ways they never intended. The effect of the parent's conflict can have a life long effect on the children.

If it is agreed or Ordered that only one parent will have legal or sole Custody, that parent will be responsible for the majority of the decisions pertaining to the children. The other parent can still be updated on and informed of educational and medical issues. Negotiated agreements often contain a provision that school and medical records will be sent to both parents, even if only one has legal Custody. Some institutions will do so immediately upon request, and some will require the written consent of the parent with legal Custody. It has also become very common in litigated cases for Courts to direct that such information be shared with a non-custodial parent. It is also common for agreements and Orders to include a provision that the parent without legal Custody has a right to receive this information and that the other parent will sign an authorization or take any other steps necessary to ensure that this information is provided.

The second form of Custody, Physical Custody, addresses where the children will live. Physical Custody is only an issue if the parents have Joint Legal Custody. If one parent has legal or sole Custody, the children will live with that parent. The majority of cases result in an agreement that the parties will have Joint Custody. When that occurs, they must also agree upon the issue of Physical Custody.

Your children’s living arrangements, or Physical Custody, can be structured based upon the unique circumstances of your family. You can share physical Custody equally, with each parent having the children 50% of the time, which is also called Joint Shared Legal and Physical Custody, or the children can live mostly in one parent’s home. That parent would be the primary physical custodian”. The more common arrangement is to have one primary physical custodian.

If one parent will have Primary Physical Custody, you must agree upon a schedule of time when the children will see their other parent. The time they will spend with that parent is commonly called “visitation” or “parenting time”. Other terms that are used include access time and custodial access. Many parents object to the term visitation”. They are divorcing their spouse, not their children, and they do not want to be relegated to the role of a mere visitor. It is very rare for an attorney or Judge to refuse to accommodate a request for the use of language other than the word “visitation” in an agreement or Order.

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Parental Alienation

The standard utilized by Courts in New York State in deciding custody is the "best interests of the child." In structuring a custodial schedule that best meets a child's interests, the Courts consider a variety of factors, including that of "parental alienation." 

Parental Alienation is not unique to New York State, or any other specific local. Rather, it is a problem that is, unfortunately, all too common and one that plagues homes and Courtrooms across the Country. 

Any parent who has been alienated from his or her child will need no definition of this term. They know it for what it is - the insidious use of the children as pawns in an effort to discredit the other parent as a parent. Parental alienation occurs when a parent either intentionally or unintentionally aligns the child with him or her and against the other parent. Simply put, the alienating parent turns the children "against" the other parent. 

Children who have been alienated will begin to reflect the feelings of the parent who has alienated them against the other parent. They will no longer wish to spend time with the alienated parent and will begin to think poorly, or show fear towards, the other parent. Mental health professionals have written many articles and studies explaining how and why parental alienation occurs. In its most basic form, parental alienation occurs when a parent becomes so consumed with his or her personal feelings of anger, betrayal and hurt, that they are unable to separate those personal feelings from the other parent's right and ability to have a relationship with the children. Often, the alienating parent truly believes his or her own rhetoric. They are so convinced that the other parent is evil that their belief compels their conclusion that the other parent must be bad for the children. A

n alienating parent can engage in a number of unacceptable tactics. They might call the other parent names in front of or directly to the child, speak negatively about the other parent in the presence of the child, refuse to abide by access schedules ,or have no regard for the child's contact with the other parent, often telling the children that it is their decision whether or not they go to visit. More subtle examples of alienating conduct include scheduling fun family events when a child or children will be visiting with the other parent, confiding in the children about the other parent's conduct that caused the marital dissolution, rewarding the children when they mimic the alienating parent's disparaging statements or conduct regarding the other parent, and rewarding the children when they refuse to visit with the other parent. 

Discussing the other parent's marital faults with the children and keeping the children updated on the details of the Divorce is, unfortunately, common. A parent who does this is not being honest with their children. Rather, they are alienating them against the other parent. Divorce and Custody/visitation disputes are legal actions between two adults. Children should never be involved in those issues. If they ask, as they invariably will, about the details, they should be told that the issues are adult issues and that both of their parents love them. 

Another common form of alienation is scheduling activities for the children during the other parent's custodial time in an attempt to prevent that visitation from occurring and/or preventing the other parent from attending school events, conferences and extra curricular activities. Children benefit from the involvement of both parents in the various aspects of their lives. No matter what wrongs a parent perceives that the other parent inflicted upon them and/or the children, the children will benefit from spending time with the other parent and having that parent present at important events in their lives. 

Parents in the midst of adult disputes are prone to using the children as messengers or weapons. It is always inappropriate to question a child about the details of the other parent's life or to use the child as a messenger for adult issues. Surprisingly, even well intentioned parents will instruct their children to ask the other parent questions regarding adult issues such as Child Support, visitation or division of marital property or debt. Your child's relationship with the other parent is that of parent and child. Children should never be used as messengers for questions or to relay information on adult issues. 

Immature behavior in front of the children is also a form of indirect alienation. By refusing to speak with the other parent or deal with him or her in an adult manner, a parent sends the children a very clear message: the other parent is not worthy of your time and respect. Anyone with children knows that children emulate and mimic the behavior of adults close to them. If a parent treats their former partner with disrespect, in time, so will the children. 

Parental alienation is a factor that Courts should, can, and do consider when awarding Custody. In extreme cases, alienation, which is viewed as an inability of one parent to foster a positive relationship between the child and other parent, can serve as a basis for a change in Custody or an award of Custody to the parent who has been the subject of the alienation. In less extreme cases, Courts will typically modify the existing visitation schedule to give more time to the alienated parent and will sometimes Order therapy for the parties or the children.  

Recently, a New York Court suspended child support to punish an alienating parent.  Although that result might justly be viewed as equally punitive in its effect upon the children, it might  be a truly effective means of compelling a different set of behaviors from the alienating parent.  The child support was not terminated - it was suspended until the alienating conduct was ended.  An analysis of that case is contained in this Newsletter. 

The sad fact is that any Order fashioned by a Court to address a situation where alienation has occurred is nothing more than a band aid placed on a bad situation. If a child has been alienated from a loving parent, that parent-child relationship may be irretrievably broken. If not, it certainly will have been damaged to a great degree. 

When considering the possible remedies for alienating conduct, a Court has to consider that it may not be able to award Custody or even an expanded custodial access or visitation schedule to the parent who has been alienated. To do so might cause more emotional harm to the child who has been taught to disrespect, fear, or even hate that parent. 

An Order that the parties engage in therapy presupposes that the alienating parent will view a therapist as an expert to be listened to. That does not occur in all cases. The end result of a campaign of alienation is often children who are damaged, probably for life. The parent who has been alienated is often then asked to do the Herculean - remain patient, loving and available, continue to show up for access periods even though you may be denied access, and continue to provide for the children no matter what. It can be no surprise that a number of those parents do the opposite. They abandon their efforts to remain a constant part of their children's lives. The alienating parent gets exactly what they set out to achieve. They have made the other parent vanish. However, in doing so, they have very clearly harmed their children. It is also clear, however, that only by staying in their children's lives can the alienated parent help their children to recover from the effects of conduct that is as damaging as outright physical abuse.

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Relocation and Custody

When a party desires to move a distance that would effect the other parent’s visitation, the issues of custody and visitation become even more complex. New York has a strong public policy that, favors regular, meaningful contact between the child and both parents. In today’s mobile society, the relocation of parents who are separated or divorced is not uncommon. Whether or not a relocation with the children will be permitted is often the subject of emotional and acrimonious litigation.

A custodial parent should never take the child and move a sufficient distance from the non-custodial parent so as to deprive that parent of regular, meaningful contact. Without the permission of either the Court or the other party, the custodial parent faces the risk of being forced to return to their prior home area to litigate the issue of the appropriateness of a relocation with the children. Non-custodial parents have the right to regular and meaningful contact with their children, which gives them the right to file an application with the Court to prevent a child’s relocation.

Often, in negotiating the terms of a Separation Agreement or a Custody Order, the parties will address the issue of relocation. If there is a possibility that you or the other parent will relocate, you should address that issue at the time that you are resolving all of your other issues. A Separation Agreement or a Custody Order can contain a provision regarding relocation. Once a legally valid Agreement or Order addressing relocation has been signed, it will usually be decisive if a party seeks relocate.

If there is no Agreement or Order addressing relocation, either party can make an application to the Court either before or after the move and seek to block or obtain permission for the move. The Court will decide whether to permit the relocation with the child or children. A relocation without the children is always permissible.

A Court will base its decision on relocation on the best interests of the child giving particular consideration to the child’s right to have regular, meaningful contact with the non-custodial parent. If, based upon the facts and circumstances of the particular case, the move is deemed in the child’s best interests, the Court will allow the custodial parent to relocate. If not, the request to move will be denied.

Each relocation request will be determined according to the facts and circumstances of the particular case. One of the initial factors that the Court will consider is why the custodial parent wants to move. Better employment, educational and financial opportunities, and health concerns are just some of the reasons Courts have relied upon in granting or denying relocation requests. If the relocation, taking into consideration the reasons for the move and all other relevant factors, will serve the child’s best interests, the Court will grant permission for the custodial parent to relocate.

There are a variety of other factors that Courts have considered in determining whether to permit a relocation. These include the strength and continuity of the child’s relationship with the non-custodial parent, the child’s connection with the community, the child’s involvement with other family members and friends in the area, and how the move will effect the non-custodial parent’s access to and relationship with the child. If the non-custodial parent and the child had regular contact before the move, the Court will consider whether revising the access or visitation schedule can ensure meaningful access. In relocation cases where the move has been permitted, it is common to see a modified visitation schedule that allows the non-custodial parent blocks of time, such as a large part of the summer and other school vacations.

The Court will also give particular consideration to how the child’s life will be effected by the move. Important factors to consider will be the educational opportunities in the new area, the financial effect of the move on the child and any emotional implications of the relocation. A parent considering relocation should always investigate the opportunities for the child prior to the move. Your application will be stronger if you can show that better opportunities await your child in the new location

Relocation should never be taken lightly. Simply because a party has physical Custody of a child does not permit them to relocate at will. Any move should only be made after consultation with an attorney. Similarly, if you are a non-custodial parent and your ex-spouse is thinking about moving or has moved a distance that negatively effects your contact with your child, you should consult an attorney as soon as possible. The longer a party has remained in the new area with the child the stronger their case will be.

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