Custody Frequently Asked Questions (FAQs)
1. I want to change custody. What do I have to do?
One of the minimum requirements usually needed to effect a change in custody is an important change in circumstances. You should be able to document the change or changes and show that they are detrimental to the children.
2. Can a child have input into a custody dispute?
Courts will often listen to the wishes of children but rarely take into account the wishes of very young children.
3. At what age can my child decide who he or she wants to live with?
In New York, there is no specific age when a child can decide who he or she wants to live with. The court has the final say until the child turns 18 years of age. In most cases, the circumstances of the situation will matter as much or more than the child’s age. The judge is normally given almost unlimited latitude in how much weight to give to the child’s wishes.
In some cases, the judge may decide to talk with the child privately “in chambers”. Parents sometimes are excluded so that the child can speak freely without fear of displeasing one parent or the other. It is worth noting that what a child tells or relates to a judge in chambers may not necessarily be kept confidential. No one, not even the judge, can guarantee that what a child says will remain confidential; indeed, the child’s statement(s) may play an important part in the judge’s decision and as such would normally become a matter of record.
Unless circumstances leave no alternative, children should not be asked or required to testify. Even having the child speak privately with the judge generally should be avoided. The stress that testifying places on a child can be immense and unfair — even a ‘private’ talk with the judge in his chambers is testifying in some way, and the child probably knows it. Hardly any child wants to be placed in the position of being asked to choose one parent over the other. Only when the child has a genuine desire to speak with the judge should it be considered.
4. My son wants to live with me. Should his wishes be honored and/or considered by the judge?
If a child is old enough, mature enough, and intelligent enough to make a decision rationally on this issue, and can communicate his or her decision and wishes effectively, the judge may listen closely to what the child has to say. The child should also have a convincing reason to substantiate his or her decision.
5. Does a young child need his or mother more than the father?
In the past, judges recognized a standard that was known as the “tender years” doctrine. Under this standard, custody of a child of “tender years” — generally under the age of eight — was awarded almost always to the mother. The only way to prevent this was to prove that the mother was unfit to raise the child. The “best interests of the child” standard has eliminated the “tender years” doctrine. Mothers are no longer awarded custody of a young child automatically; still some judges still make use of the tender years doctrine without calling it such. They achieve this by taking into consideration the age and sex of the child when deciding child custody. While sex and age are not automatic determinants of custody, they still can be considered by the judge and can be very persuasive factors.
6. What do I need to do to change custody of an 18 year old who wants to live with her father?
An 18 year old is legally an adult, and as such, doesn’t require permission from the court to live wherever he or she wants.
7. My ex is trying to take our child out of the country. How can I prevent this?
If you believe that your minor child, no matter his or her age, may be abducted internationally, immediately contact the U.S. State Department’s Office of Children’s Issues and appropriate law enforcement officials. Information regarding the issuance of a passport to a minor is available to either parent, regardless of custody rights, as long as the requesting parent’s’ rights have not been terminated.
The Department of State’s Passport Name Check Clearance System is a system to alert you when an application for a U.S. passport is made. In order for that office to notify an objecting parent, they will need to have in their files the parent’s request and a copy of a document such as a birth certificate or court order of guardianship that shows the relationship between the child and the objecting parent.
Visit the U.S. Department of State’s web page on International Child Abduction at http://travel.state.gov/family/abduction/abduction_580.html. There you will find other helpful links and instructions on how to obtain assistance. If you have questions, you can call them at 202-736-9090.
For further information regarding the issuance or denial of U.S. passports to minors involved in custody disputes, or about international child abduction, you can contact:
U.S. Department of State
Office of Children’s Issues
SA-29, 4th floor
Washington, D.C. 20520
Phone: 202-736-7000
Fax: 202-736-9133
8. My ex and I have joint legal custody. She wants to leave the state with our child. Can she do this?
She may be able to do so. It depends, in part, on the wording of your decree. If you find out that your ex-spouse is planning to move, contact an attorney at once.
9. My girlfriend and I had a child. Problems arose and she left with our infant and went to another state. Can she legally do this?
Yes, she probably can. Unless there was a restraining order or other court decree that prevents her and/or the child room leaving the state, she would be free to do so, just as any legal parent of a child would be. Has paternity been established? You may not have any rights unless it has.
10. Is it harder to win custody initially or to change it later?
It is often much easier to win initial custody than to change it later. The court looks at different things when they determine custody initially, as opposed to when deciding motions to modify custody.
11. What if I am in better health than my spouse? How does that effect custody decisions?
If your health is only marginally better than your spouse’s, such as you exercise daily while he or she is on the couch, then a judge likely will ignore this. If, however, your health is significantly better than your spouse’s, who has a chronic or serious disease, then a judge may consider health in deciding custody.
This does not mean, however, than a disabled parent automatically is out of the running to become the custodial parent. The disability will be one of the factors considered by the judge when awarding custody. If the disabled parent can meet the children’s needs and provide a good, stable home environment for the children, the disability will not be the main factor that the judge considers.
If, on the other hand, one parent suffers from a mental disability that would make caring for the child difficult or next to impossible, of course, this would become a major factor. If the mental disability can be successfully treated by drugs or other methods and would not pose difficulty or danger when attending to the children, it may not be as relevant. Be aware that some judges in some states still have a prejudice against mental illness when deciding child custody and believe that any mental illness renders a parent unfit. Again, your lawyer will be able to advise you on this issue. If you are the parent with the mental disability, be prepared to demonstrate that your disability is being treated and/or poses no difficulty or danger when attending to the needs of your children.
12. Is unemployment a factor in awarding custody?
Unemployment can be a factor, but it might not work the way you’d expect it to. In some instances, not having a job equates to having more available time for the children, and if the judge knows one parent is working and able to financially support the child(ren), the one without the job is free to be the “caretaker” or custodial parent. This is statistically more likely to be true if the unemployed parent is the mother. This may not be fair, but it is a fact that should be taken into account. Some attorneys will go so far as to advise a parent to quit work in order to bring this very kind of situation into effect. Again, this tactic is much more likely to be suggested to a mother than a father.
13. How do I obtain custody of my child?
Either one of the separated parents may ask a court for custody of a child. If the parties cannot agree about who should have the custody, the court will grant custody either solely to one of the parents or joint custody to both of the parents. The standard for granting custody in New York is the “best interest of the child.”
14. How do I sign over custody of my child?
Get a Court to do it.
15. I’m worried that the other parent is going to “snatch” the children and hide. What can I do?
If you think the other parent may try to conceal or flee with the children, there are steps you can take. A restraining order that prevents the children from leaving the state should be considered seriously.
16. The unmarried father of my child says that if I leave the state with our daughter to go visit my dad, he’ll have me arrested for kidnapping. Can he do this?
It is unlikely that you would be arrested for taking your child out of state.
17. Can fathers obtain custody?
The law no longer favors one parent over the other. The court determines what is in the best interests of the children.
18. When do grandparents or other relatives have custody or visitation rights?
Generally, the natural parents will have a presumptive right to custody. Only in cases where the parents are found to be unfit will third parties be granted custody. In a divorce case, or at any time after a divorce, grandparents may petition the court for visitation rights. In New York you need to shoe extraordinary circumstances exist for a non-parent to have custody. This means you need to show that the parent is unfit and then the court will consider what is in the child’s best interest.
20. My ex and I separated informally (without paperwork) quite some time ago. How will custody be decided after all this time?
If a substantial amount of time has passed with no legal separation or custody order in effect, it is likely that the prevailing arrangements — whatever they may be — will be used by the court as the basis for determining custody. The court will usually preserve the status quo, unless sufficient reason exists to change it. In essence, whatever you’ve been doing in terms of custody will probably continue.
21. If there is no paperwork specifying custody, can I keep my child out of state and not return him or her to New York while I file for custody?
You can, but this tactic may backfire on you. Judges don’t usually appreciate this kind of interstate ‘sleight-of-hand’ with a child. The judge will likely see this for what it is: an under-handed trick to gain an unfair advantage in a custody dispute. These kinds of maneuvers often worked ten or twenty years ago, but these days they ’re more likely to be held against you. If the child has an established custodial environment in New York, (i.e. has been living here for some extended period of time), your not returning the child here may very well be viewed as interfering in the child’s normal life.
22. My ex was having an affair; will that help me get custody?
Generally, the only time an affair will make any difference in a custody determination is if it exposed the children to some sort of danger or was detrimental to their well-being in some way, or if it is one affair in a long line of affairs showing some sort of depravity on your ex’s part.
23. My ex has some very extreme religious views; will that help me get custody?
Divorce judges hate to mess with religious issues; it’s tricky territory at best. Unless the judge can find an extremely compelling reason to address it, he or she usually prefers to have the parents work it out among themselves.
24. My ex has psychiatric problems; will that help me get custody?
Psychiatric problems can be influential in a custody determination. If your ex has a documented history of mental illness or a verifiable personality disorder, the judge should consider this to be a negative factor in awarding custody.
If your ex has emotional or psychiatric problems, you will want to document this fully and present it to your attorney and the judge.
25. My ex is trying to alienate our child from me; will that help me get custody?
It might. More and more judges and evaluators are becoming familiar with parental alienation and are willing to consider it as a serious issue; although judges typically refer to it as the “the willingness to support the child/’s relationship with the other parent”, it works out to be more or less the same thing.
If you can show credible evidence of alienation, it should be considered as an important factor in deciding custody.
26. My ex is a heavy drinker; will that help me get custody?
Possibly, but it depends on what you mean by “heavy drinker”. If it can be shown that the other parent’s drinking prevents him or her from caring properly for the children, puts the children in danger, then it may be a factor. Ordinary social drinking almost never will be considered a serious factor in determining custody.
If your ex has a history of alcohol abuse, is (or has been) a member of Alcohol Anonymous, or has been through a drug or alcohol rehabilitation program, this should be brought to the attention of your attorney and the judge.
27. My ex is (or was) using drugs; will that help me get custody?
It may be a decisive factor. Marijuana use isn’t considered to be as serious an offense as it used to be, but the use of cocaine, heroin, and amphetamines, as well as “designer drugs” like Ecstasy, is taken very seriously by most judges and evaluators.
28. My ex is associating with drug users/violent people/criminals; will that help me get custody?
It might, but if custody has been established for some period of time, don’t expect the courts to act unless the circumstances are extreme. Your best bet is to document everything as fully as you can. If you believe the situation poses a genuine threat to your children, contact your attorney about filing for custody.
29. Do I have the right to see my children’s school records?
Under New York and federal law, unless specifically prohibited in the parenting plan or by an order from the court, you have the right to complete access to your children’s school records as guaranteed under federal law.
30. How can I get my children’s report cards and other school records?
Unless a court order specifically bars you from access to your child’s school records, you have the right to obtain them. Start by sending a School Records Request letter to your child’s school.
31. How can I get my children’s medical records?
Unless your parenting plan specifically bars you from access to your children’s medical records, you have the right to obtain them.
32. What is the “Right of First Refusal”?
Having the “Right of First Refusal” basically means that before either parent can use the services of a baby-sitter or other third-party caregiver, the other parent must be given the opportunity to care for the children during that time.
33. I am the non-custodial parent. Do I have to get the custodial parent’s permission before cutting my daughter’s hair or letting her pierce her ears?
Not unless you are prohibited by court order.
Having said that, be prepared to have these kinds of things cause major friction and trouble if you and your ex can’t come to some sort of agreement on relatively minor items like haircuts. Small disputes over things like this often escalate to more serious conflicts, which in turn lead to even more serious conflicts, and so on. Pick your battles wisely. Unless this is genuinely important to you and the child, ignore it.
34. Does the non-custodial parent have the right to be involved in the decision-making as to the education of his or her children, especially with regard to home schooling?
This depends on how your divorce decree or other custody agreement is written.
35. My ex is trying to get her new husband to adopt my children. I don’t want to lose my kids. Can she do this against my will?
Not if you have been a “real” dad. Have you been communicating with your children on a regular basis? Have you been supporting them financially on a regular basis? Do you currently have a court order? Do you have any papers of any sort proving that you’re their father?
36. My ex-girlfriend and I had a child together. She left the child with me, but will not sign over custody. What are my chances of getting custody of our child.?
Because of your unmarried status, you will need to establish paternity if you haven’t already done so. If paternity is established, you can file to obtain custody. The longer the child has been in your care, the better the chances that you would be awarded custody. If you intend to file for custody, you should retain an attorney as soon as possible and discuss this matter. You may contact our office by phone (718)-(260-8668) (917)209-3722or by email to [email protected] and make an appointment for a
39. My ex does not call, visit, or write our children. Is there any legal action I can take to make my ex use his or her visitation time?
Unfortunately, no, there is no way to force visitation (or a relationship) with an unwilling parent. The courts usually won’t address this issue because there isn’t anything they can do either. You may facilitate the relationship to the best of your ability, but there isn’t any way to force it if the other parent is uncooperative.
40. My child hasn’t seen the non-custodial parent in over four months. The non-custodial parent now wants to resume visitation. Can I ask for supervised visits?
You can ask, but you probably won’t get it. Four months is generally not a long enough absence to require supervised visitation absent other circumstances that would make it advisable.
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42. I’ve been incarcerated before. Will this make it harder for me to get full custody of my child(ren)?
Probably. Previous incarceration can be a serious obstacle to custody, as most judges don’t look favorably on a prior history that includes jail or prison time. Your best bet might be to retain an attorney and seek visitation, establish a pattern of responsibility exercising your parenting time, and then consult with an attorney again to find out if seeking custody is a realistic option.
43. My ex lost custody of our kids nine months ago due to a domestic violence incident in her home. What are the chances of her getting custody back?
The longer you have the children in your custody, the worse her chances are. Because delay works in your favor, your attorney may want to move as slowly as possible so the children will be with you in an established custodial environment for as long as possible before the judge has to make any decision.
You will want to be able to show that the children are doing well in your care by documenting their progress, grades, health, etc. You may also want to verify whether there have been any further incidents of domestic violence in her home, which would certainly count against her re-obtaining custody.
44. My ex and I share joint legal custody. Does she have the right to dictate where and who the children are with during my parenting time?
No, she doesn’t. She cannot control, regulate, or restrict who you see or what you do during your parenting time. Generally, the only exception to this would be if there are provisions in your divorce decree that specify some sort of limitations or conditions. If there are none, then she has no authority to manage or direct what you do or who you see during your parenting time.
45. I’ve only met my child once. He is twelve years old and his mother keeps moving him around. Now he ‘s with his grandmother and she’s petitioning that the child support go to her. What are my chances for custody?
We’d guess your chances are remote. You’d have a much better chance of starting off by going for more visitation time.
46. My ex has been in the hospital for several weeks and has left my son with her mother. Shouldn’t he be staying with me? What are my legal rights in this situation?
The child should be staying with you if you are a fit parent. Your rights, in part, depend upon what is in your divorce decree. If you have a “Right of First Refusal” provision in the decree, you may need to go to court to enforce it.
47. My ex and I share joint legal custody. She wants to travel out-of-state with our three year old. Is she legally obligated to provide me with flight documentation and the name and phone number of the place where they will stay?
This depends on what, if anything, is written in the divorce decree. If there is no provision addressing it, she doesn’t have to provide you with this information. She should provide it for the child’s safety.
48. With shared legal custody, if the primary custodial parent chooses to change from private to public school and the non-custodial parent will not agree, who has the final decision?
Normally the court will back the primary physical custodian of the child.
49. My 12-½ year old son refuses to go back to my ex, the custodial parent. He is under much stress at his or her house. He wants to stay with me and says he is happier with me. What can I do?
If it is really that bad, file for custody and consider having an evaluation done. A judge may listen to reason if the child can clearly explain why he prefers to live with you.
Some of the factors that would favor a child’s move to the non-custodial parent’s home are as follows:
1. That the child is very strong-willed and is not afraid to stand up to those who may try to intimidate the child in returning to the custodial parent’s home;
2. That the non-custodial parent lives in the same area where the child lives now;
3. That the relocation of the child to the home of the non-custodial parent will not result in the child having to change schools and friends;
4. That the child is not doing well in school and it would appear that the environment with the current parent may be partially at fault;
5. That there are no older children already living with the parent with whom the younger child wishes to move;
6. That the non-custodial parent is a woman. There is clearly a bias in favor of mothers in divorce court, so non-custodial female parents definitely have the upper hand;
7. That the non-custodial parent could demonstrate to the court that he or she can better provide for the best interest of the child;
8. That the non-custodial parent is able to provide a good, well-thought-out parenting plan to the court and any professional who may be called in;
9. That the child is eagerly willing to discuss his or her situation with the other parent and third parties;
10. That the child suffers from some form of physical or emotional abuse with the custodial parent and is willing to disclose this to anyone that asks, including outside third parties;
11. That there are other siblings already living with the parent with whom the child wishes to live.
Factors that would go against a child’s desire to move to the non-custodial parent’s home:
1. That the child is not very strong-willed and is easily intimidated to return back to the custodial parent’s home;
2. That the non-custodial parent lives some distance away from where the child currently resides;
3. That the child is doing well in the current school. An exception to this would be if moving to the other parent’s home will not provide a change in school, eliminating this as a negative factor;
4. That there are other siblings living in the custodial parent’s home and they do not want to move to the non-custodial parent’s home.
5. That the non-custodial parent is a father. There is clearly a bias in family courts in favor of mothers, not fathers, so it is much harder for a non-custodial father to get custody or primary care;
6. That the non-custodial parent unable to demonstrate to the court that he or she can better provide for the best interest of the child than the other parent;
50. My ex is petitioning the court to change to a new parenting schedule, saying it is too hard on our four-year-old. It’s only been two months on a standard every-other-weekend schedule. I don’t agree to the change. Will a judge?
Two months is not long enough for the child to adjust. A judge will be unlikely to make changes in the schedule this soon.
51. My fiance’s ex-wife has not had any contact with their child for more than two years. What do I need to do to legally adopt her?
The adoption process is the act of terminating one parent’s rights and obligations and granting those rights and obligations to another. In order to terminate rights, grounds must be shown unless you have the written consent of the person who will lose the rights and obligations unless the Court finds that the natural parent has acted so as to have forfeited her right to withhold consent to the adoption.
52. Can an unwed mother file for shared custody with outlined visitation if the father has a work schedule that changes each week?
Yes, parents can file for joint custody regardless of their personal schedules.
53. What is the definition of an unfit parent?
While there is no specific definition under New York law, an unfit parent is one who has failed to have regular contact with a children for a prolonged time without justifiable cause or has failed to contribute to their support for a prolonged time without justifiable cause. A parent is also unfit if he or she has been abusive, neglected the child or abused the child.
