Posts Tagged ‘child custody’

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.

5 Factors New York Court Considers For Allowing Relocation After Divorce

Sunday, March 12th, 2017

Your economic situation after divorce may lead to the decision that relocation is the best option for growth and recovery. If you have recently gone through your divorce, there are laws in place that may prevent you from moving out of New York State. So what are the factors New York Court considers to allow relocation after divorce?

One spouse relocating their residence after a divorce is quite common, but because of the fact that it permanently alters a child’s relationship to each parent, not to mention with local friends and the community, the courts will often review and deliberate to see to it that the child’s best interests are considered and are preserved in the relocation.

And so, I have compiled a basic rundown of how judges tend to decide whether to allow a custodial parent to move with their child or children. Each case carries with it its own circumstances and facts, but the fact remains the child’s best interests are the courts main concern.

5 Factors The Court Will Consider For Allowing Relocation After Divorce

Here is a list of common factors courts will consider:

  1. The reasons for seeking or trying to oppose the move.
  2. The dynamic and individual relationship and connection between the child involved and the parents.
  3. If there is a history, ongoing or otherwise, of a negative relationship between the parent and child.
  4. How the move will affect the child’s other relationships or if the move would prove to be beneficial for the child in multiple aspects of their life.
  5. Does the move have the capability to completely ruin the relationship between child and noncustodial parent? It should be noted however that the custodial parents reasoning for leaving and the potential harm that could happen if the relocation plea is denied.

Can I Relocate To A Different State If My Ex-Spouse Has No Visitation Rights?

Monday, February 27th, 2017

In previous blogs, I have covered a vast majority of the many aspects of child custody, and the arrangements, support payments, and rules that operate in that area. Court-ordered custody arrangements have, and can, work well for families for years, even the entirety of childhood. It is especially common when both parents live in proximity of each other. However, there are instances when ex-spouses need to move further apart, perhaps even out of the state.

The dilemma the court sometimes has to face is when the non-custodial parent opposes the move because that spouse will lose the valuable and sparse visitation time they have with the child. In these types of situations, custodial parents almost always have to go to the court and ask the judge to grant permission to move the child or children out of the state. These can be one of the hardest types of custody battles/disputes.

The courts generally don’t allow the child to be removed from the state of residence without prior approval from the very court that issued the initial custody order. Custodial parents that want to move the children out of the state must first get the court’s permission, as stated. If the custodial parent moves out of state with the child without this permission, and if the non-custodial spouse does not approve, there might be court-ordered sanctions brought upon the custodial parent, including orders of contempt, leading to fines and even possible jail time.

Move-away orders can be entered by either consent of both parents, or by the court after a hearing. If the parents agree to an out-of-state move, there must be a written agreement, aka stipulation and consent agreement. This will be turned into a court order after receiving the judge’s approval. If the parents can’t agree, a co-parenting counselor or mediator, who is trained in child custody issues, can be of help in resolving these matters. If this doesn’t work either, a motion will have to be filed by the moving parent, asking the court to grant the request.

What Is The Difference Between Joint Custody And Sole Custody Of The Child?

Thursday, January 5th, 2017

In a previous blog, I discussed the difference between physical and legal custody, which differentiated between having the child live with you and having the right to make decisions for the child. In this article, we will be discussing the difference between sole custody and joint custody, both of which encompass the physical and legal custody of the child, or children, as well.

Sole Custody: One parent can have either sole physical custody, or can have sole legal custody of the children. This is not a popular outcome in most divorce cases, as it often alienates one parent from the child and prevents them from playing any role in the child’s life. Unfortunately, there are some cases where a parent will be awarded sole custody if the court deems the other parent unfit to take care of the child to any extent. Be it a drug or alcohol problem, or a history or tendency of being abusive or neglectful toward the child, there are some situations when a child needs to be kept away from one of their parents. But, as I said earlier, it isn’t as common for courts to award sole custody anymore. In fact, even if one parent is given sole physical custody, meaning the child mainly lives with them, both parents will often share joint legal custody, and moreover, the parent who isn’t given custody is allowed liberal visitation time.

In this scenario, the parents have an equal say in the decisions regarding the child, or children’s, life, but again, one parent is deemed to be the primary parental guardian that the child lives with.

There is no doubt that children do better with two parental figures in their life than one, so unless there is a real need to keep your ex-spouse away from the child, it’s best not to seek sole custody.

Joint Custody: When spouses who live together but share both the physical and executive custody of the child, it is known as joint custody. Joint custody doesn’t have to come after the parents get divorced; you can file for joint custody if you and your spouse are getting separated, or simply aren’t living together anymore. This is a much more common option that courts will exercise when deciding the living situation of the child. There is usually a schedule that is set up, along with housing accommodations that suit the child’s needs. Common arrangements are alternating months, six-month stays, sometimes even a year with one parent, it depends on what the parents decide.

And if the parents can’t come to an agreement, the court will decide for them. However, like everything in life, there are cons to joint custody. The child is moving around constantly, and there is a lack of a sense of a true “home,” and it can be expensive to have for both parents to maintain and own a home. The role of the parent here is to make the most of an unfortunate situation that the child never asked for in the first place.