Posts Tagged ‘child custody’

How Do You Prove A Parent Is Unfit?

Wednesday, July 3rd, 2019

The term “unfit parent” is thrown around a lot, and is interpreted to mean different things depending on the context of its use, and the arena in which it is said. In the realm of family court, many misunderstand this to imply that the parent is abusive, and while that is one common aspect seen in parents who are unsuited to be raising kids, it is not the only way a parent can be considered unfit. 

A parent could go their entire life without physically striking or emotionally harming their child, but if they begin to start abusing alcohol, then it becomes clear why the term “unfit parent” was coined. Being a parent comes with a plethora of responsibilities, and not being able to fulfill them due to troubles in one’s own personal life has historically been an impactful factor in custody arrangements, such as a change in visitation or the primary custody. Sometimes, the parent’s struggles and issues can reach such a level that the court does not feel it is safe to have the child be in contact with that parent at all, and all parental rights are removed.

         The court, when determining custody, has a hierarchy of considerations, and at the top of that list is the consideration of “what is in the best interest of the child?”, and sometimes it requires them to step in and intervene on the relationship between parent and child. If the parent is a danger to themselves due to careless behavior, abuse of drugs or alcohol, or expose the child to people or activities that endanger their well-being, it may truly be in the best interest of that child if they are separated from this person. Revoking visitation rights is not an easy choice for the court to make, as the best case would be for the child to develop and foster a healthy relationship with both parents. 

If you truly believe that your child’s other parent is unfit, your best chance is to start collecting evidence to present to the court. This could be video’s of the parent engaging with the child in an inappropriate way, presenting a criminal file of the other parent, written correspondences, the point is to paint the picture for the court of what this parent is like outside the courtroom, and prove that the way they engage with the child and how they choose to live makes them unfit to serve as a parental guardian for your shared child. 

Can One Parent Deny The Other Parent Visitation?

Thursday, June 27th, 2019

If a parent is awarded sole custody, this, in turn, gives them absolute autonomy in the decision-making process (and the execution of those decisions). This is because a parent with sole custody has both legal custody and physical custody of the child/children. The legal custody aspect is what gives the parent the ability to make all of the impactful choices regarding your child, while they are still a minor, without needing to consult the other parent for their input. There is a multitude of reasons why only a single parent is given the ability to make these life decisions for the child, and some of them do revolve around the non-custodial parent’s decision-making abilities and history.

These same reasons could be utilized and highlighted by the custodial parent in their effort to deny visitation. For example, if the other parent has a history of alcohol abuse, and upon arriving to pick up the child for their visitation day, they appear intoxicated; the custodial parent would have a good reason not to let the child go with this parent. In such a scenario, it would be wise to document this, most efficiently through video, as the other parent may mention it in court in order to make a case that you are violating the visitation agreement.        

It is a wide-held belief by the courts that a child develops best when in regular contact with both parents, and so even with sole custody, it is rare that a parent and child never see each other. So, if you are planning on requesting to deny your the other parent visitation entirely, it will require very thorough documentation (as credible evidence), and a significant pattern. An isolated incident will probably not suffice, but repeated instances could. 

Is An Attorney Necessary To Voluntarily Terminate Parental Rights?

Thursday, January 24th, 2019

If a parent desires to forfeit parental or guardianship rights to their child or have been requested to do so and approve of this request, they must meet with a lawyer along with the child’s other parent. In this meeting, the lawyer will ensure that all the necessary paperwork is correctly filled out and that the termination of rights is legally allowed.

The ins-and-outs of a parent’s rights being terminated vary, sometimes greatly, by state, which is why it is highly advised to seek assistance from a lawyer.

Not considering some of the uncommon variations, below are the general processes for termination:

  • The terminating parent must sign a termination document, which should be drawn up by an experienced lawyer to confirm all legal angles are covered. The signature of the terminating parent generally needs to be notarized and be done before a witness, then the papers will be filed with the court.
  • The court will want to examine the case facts, and decide whether or not the termination is legal and fitting based on their own review. In most cases, termination of parental rights is only allowed for the purpose of someone else adopting the child. However, if the terminating parent is consenting and/or wants to take the action, and there is a good reason for it, a judge should be willing to go give the all clear. A lawyer can also help you with stating your overall reasoning for the court in this type of situation.

Hiring a lawyer is vital in cases where the parent that gives up their parental rights because it is required that the parent gives their explicit informed consent, in order to give up those rights. If both parents have legal representation, then it is easier to ensure the parent terminating their rights does not later argue that they were not fully informed. There will be explicit proof that they had retained legal representation, and that the lawyer aided them in understanding their rights, and in making a deliberate, informed decision.

What If The Non-Custodial Parent Doesn’t Appear For A Court Date?

Wednesday, August 29th, 2018

Assuming that the non-custodial parent was properly served, and made aware of the court date, they are expected, and demanded, to show up to court. Typically, a summons, along with other relevant documents to that court date, will be included in the service, and will also notify the parent of the date, time and location of the court date.

There are certain types of cases in which the penalty for not appearing can lead to a bench warrant being issued for that person’s arrest. However, with regard to custodial/non-custodial parent issues, if the non-custodial parent does not appear, it will only serve to hurt them in the divorce process. Suppose that you are the non-custodial parent, and the court date is set to discuss a potential modification to the custody agreement. While it is not a guarantee that, if the non-custodial parent does not show up, the court will rule in favor of the other party, it is really not a good look for the non-custodial parent, and is not indicative of someone who A. is responsible, and B. really wants to have a new custody arrangement that will allow them to see their kids more.

If the court date is to discuss child support, then the non-custodial parent’s absence could mean that the court makes a decision without the non-custodial parent being able to represent themselves and their interests in court, which could be incredibly important, depending on the exact nature of the issue being discussed in court. So, besides giving off the impression that you just don’t care, missing court dates means that you will not get to have your interests represented and argued for, which leaves you at the mercy of the decision made by the court – without you.  

How Does Remarriage Affect Child Custody?

Friday, August 24th, 2018

When it comes to children’s living circumstances, the court holds “what is in the best interest of the child” as their most determining factor. With that in mind, parents are often worried about beginning a new romantic relationship, because they fear that it may create an environment in which their child does not feel comfortable. Not only would a parent with physical custody worry about this, but a non-custodial parent as well, as they already have their child with them for a limited amount of time, and would not want to give the court a reason to further limit this time. But does that mean a parent can’t begin an intimate relationship with a new person, let alone remarry?

First, it’s important to recognize the common scenarios in which remarriage affects a child life. For instance, if the remarriage might lead to a relocation of one of the parents, and in that scenario, the child’s life would be greatly affected. If the custody agreement states the parents have equal time, then a move like this would severely impact the agreement and the child’s  current state. In this scenario, the custody agreement would have to be modified in order to allow such a move.

Another instance where remarriage can impact the custody of a child is if the new spouse and the child do not have a good relationship. While this can be in the form of physical abuse, it does not have to be. Again, it is what is in the best interest of the child that the courts care about primarily, and if they feel that the presence of the new spouse has a negative impact on the child, they will be more than willing to make a modification of the custody agreement. The court will look to see a corresponding change in the child, whether it be in school or in their behavior, to signal that the current set-up is not working.

Ultimately, if one of the parents is planning on remarrying, then the new spouse should want to develop a positive and fostering relationship with the child, whether the parent wants to potentially gain more custody time, or preserve the custody arrangement they have currently.

Which Parent Is More Likely to Be Granted Sole Custody?

Tuesday, June 19th, 2018

The question of whether a mother or father is more likely to get full, sole custody of their child is an interesting one. In the late 1800’s, a legal principle in family common law, known as the Tender Years doctrine, was commonly called upon to argue that the mother should have custody of the child. The idea behind the doctrine is that in the “tender years” of the child, a colloquial term referring to childhood and adolescence, it would be cruel to create any space between a mother and her young child, and that a child in these tender years needs all of the love and affection that only a mother can give. Granted, it was not written into the law, and it served more as an assumed presumption, one that was adopted by some courts in the U.S. from a custody law that was passed by British Parliament in the mid-1800’s. Still, it persisted in child custody battles for over one hundred years.

However, as time went on, the courts stopped recognizing the presumption, and actually went back and started reversing decisions that were heavily based on the tender years presumption, and the courts began ruling based on rather gender-neutral respects. That is why in most of the country, the court determine custody with the best interests of the child as the primary factor, where the presumption is that the primary caretaker is going to be the best parent to handle the primary responsibilities and custody of their small child.

However, there is a bit of similarity in these two determinants. In many instances, granting the mother sole custody is in the best interests of the child, either because the father is not a fit parent in his own right, or because the father moved significantly far, to the point that it would do more harm than good to relocate the child. But, keep in mind that, if the roles were reversed, these same reasons could be behind the rationale behind why a court would grant the father sole custody.

Who Decides Upon The Visitation Schedules?

Wednesday, May 23rd, 2018

Because you and your spouse will no longer be living together after the divorce, a visitation schedule will be constructed to preemptively map out the dates and times the child will spend with each parent, and to organize the child’s life in an orderly fashion. This schedule is greatly (and obviously) impacted by the child custody order, as depending on whether there is sole or joint custody will subsequently influence how much time the child spends with each parent. But, who creates the visitation schedule?

As is the case with all child-related matters in family court, the judges primary concern is “what is in the best interest of the child?” Although a judge is not always needed to decide custody and visitation (for example, both of these can be dealt with outside of court by working with a mediator), if it gets to that point, the judge will be the one to decide on what custody/visitation arrangement is in the best interests of the child. By going to court, and not resolving these issues amongst themselves, parents are no longer in control over a huge part of the child’s life.

It would be ideal for the parents to be able to cooperate in the construction of the visitation schedule and create a realistic custody agreement that works for the family, as well as their child. The way that you and your spouse would decide on these issues is most likely not going to be in line with what a judge would rule on, however they will always be focused on ensuring the child’s interests are the top priority.  

 

What Happens When You Disagree Which School Your Child Will Go To?

Monday, January 15th, 2018

The answer to this question depends heavily on the type of child custody each parent has, or doesn’t have for that matter. Broadly speaking, the child will go to school based on where the custodial parent resides as that will usually be in the child’s best interest (remember that this is the most important factor to the court whenever handling anything to do with children). However, when legal custody is shared between the parents, most educational decisions are to be mutually agreed on, as that falls under the scope of legal custody. If an agreement cannot be made either outside of the court or in mediation, the court will be have to make a decision on this topic as well. However, in instances where one parent has full legal custody, they have the right to make final decisions about school-related issues.

Because the court has the best interest of the child in mind, they are often compelled to have the child remain in the school/school district they were enrolled in prior to the divorce, as to not disrupt everything in their lives, and keep a sense of normality and familiarity. If the parent that gains legal custody lives in the school district the child was already in, then typically that child will remain at that school. If both parents have moved out of the school district, and have joint custody, they must agree on the new school. If they cannot, the child will either remain in the current school, or whichever school district the residential parent lives in.

The answer to the question posed in this blog, as stated earlier, depends largely on what the circumstances are surrounding the custody of the kids. If only one parent has legal custody, then they have the discretion of which school the child goes to. If it is shared, and the parents cannot agree, the court will have to weigh in and make the final decision.

Paul E. Rudder, Esq. has a unique advantage in negotiating custody disputes. If you need an attorney to represent you, call 212-826-9900 to schedule an appointment.

What Are Some Divorce Challenges Same-Sex Divorcing Couples Face?

Monday, July 10th, 2017

Although it was a triumphant victory when same-sex marriage was legalized in a number of states, marriage equality does not always mean divorce equality. Issues of division of marital estate, custody, and spousal support are obstacles that many same-sex couples experience when they try to get divorced.

For those who don’t live in a state that recognizes same-sex marriage, the only way they can go about getting divorced, legally, is to move to a state that will recognize your marriage. On top of that, you need to live there for at least 6 months, which is usually the minimum for residency requirements. Once you are considered a resident of that state, you may then file for a divorce there.

Prenuptial agreements are often a good idea for any couple, including same-sex couples, because it clearly outlines who owns which assets and, in the event of a divorce, how will the other assets be divided.

Another problematic situation arises when the couple can’t agree on custody. If the child has one non-biological parent, and that biological parent wants custody, it becomes very difficult to contest that because of how the law is interpreted. A good strategy is to have the non-biological parent legally adopt the child when it is born because even if the marriage ends or is not even recognized, the adoption papers would not be contested.

If you are in a same-sex marriage and want to get divorced or if you have questions about child custody, contact a top-rated same-sex divorce attorney in NYC today. Call Paul E Rudder, Esq. at 212-826-9900.

How A Biological Father May Be Denied Parental Rights In New York

Sunday, April 2nd, 2017

In the state of New York, the courts definition of “legal parent” is not always necessarily based on biology.

For instance, if the mother was married at the time the child was either born or conceived, then that husband is considered to be the legal father of the child. Note that he does not have to be the biological father, and likewise, an unwed, biological father is not considered the child’s legal parent unless the father has signed what is known as an Acknowledgement of Paternity.

For fathers that didn’t know of the pregnancy or the child, sometimes there can be major hurdles if attempting to adopt the child.

The biological father must start to establish a significant parental role in the child’s life, which can include paying for birth expenses or child support expenses. Like most other custody cases, the fitness of the father to parent will be something that the judge will take into consideration when determining the custody dispute.

Conversely, fathers who do not provide support during and after pregnancy, who don’t show the ability to even provide the support, or those who have developed drug and/or alcohol problems are more likely to be denied the right to battle for the child in the event that they are placed in the care of either the biological mother or adopting parents.

An unmarried father is sometimes limited in how often they have the chance to be a significant parental figure in the child’s life, so it is important to form a parental relationship with the child. Get legal recognition that you are the child’s father, and the right to have a say in parental decisions.