Parents typically have to work out a child custody agreement when they separate or divorce. Sometimes, they’re able to do this on their own. Other times, their divorce lawyers handle this for them. Some parties can resolve custody and visitation with the help of a mediator.
In most divorce cases, the parties negotiate a fair custody agreement, including a visitation schedule. The judge will decide this issue at trial if they can't do this. The good news is that divorce proceedings rarely result in a trial. You should be able to resolve any child custody disputes at mediation or through your divorce attorneys.
Here, we’ll discuss what New York laws say about child visitation. We’ll explain the different types of visitation rights and discuss what to do if your ex violates your visitation rights.
Child Custody and Divorce
If you married your child’s other parent and get divorced, you must address child custody. This is true even if you file for an uncontested divorce.
As part of your divorce process, you must establish that you meet New York’s residency requirements. This means you must prove that you or your spouse have lived in New York for at least one year. In some cases, the residency requirement is two years.
You must also cite your grounds for divorce in your initial petition. The New York Courts offer the following fault grounds for divorce:
- Cruel and Inhuman treatment
- Abandonment of a year or longer (Constructive abandonment)
- Adultery (sexual relations outside the marriage)
- Imprisonment of a spouse for three or more years
- Legal separation (must separate for at least one year)/Judgment of Separation
There is one no-fault ground of divorce in New York. Most people cite an irretrievable breakdown of the marriage as their grounds for divorce. If you choose this option, you must prove that your marriage has been broken for at least six months. This isn’t difficult to prove. You must include a certification of this fact in your divorce papers.
Types of Child Custody in New York
If you had children with a partner but never got married, then you don’t have the benefit of a divorce agreement to dictate child custody. Even if you married the children’s other parent, your ex may not comply with the terms of your marital settlement agreement.
You have rights regardless of your relationship with your child’s other parent. There are two main types of child custody: physical and legal. Physical custody determines where the children will live, go to school, and spend most of their time. Legal custody determines how the parents will make decisions about their child’s education, health, and welfare.
Custodial and Non-Custodial Parents
If you’re the custodial parent, you have primary physical custody of your children. They live with you most of the time, and you provide for their daily needs.
The other type of parent is a non-custodial parent. This parent almost always has visitation rights. In many cases, the non-custodial parents have their children every other weekend and one night per week. They also have their children for a few weeks in the summer and every other major holiday.
Custody and Child Support
When you and your spouse divorce, whether it’s a no-fault divorce or a contested divorce, you will negotiate a settlement agreement. This agreement will outline such issues as alimony, equitable distribution of property, and child support. All of these things may be addressed in a separation agreement.
When you divorce, the family court judge will review your marital settlement agreement (separation agreement). If the judge believes the agreement is fair, they will approve it. They will pay particular attention to the issues of child custody and child support. The custody, visitation, and support arrangements must be in the best interests of the children.
Under New York divorce laws, the custodial parent almost always receives child support from the non-custodial parent. They also have a better chance of keeping the marital home when the courts divide marital property. This allows the minor children to stay in their homes until they graduate from school.
Order of Visitation in New York
Most parents agree on a visitation schedule when they resolve their divorce. Once the divorce becomes final, the terms of your divorce settlement agreement become part of a court order. Both parties must comply with the divorce terms, or the court can hold them in contempt.
Ideally, things will be smooth once you and your ex work out child custody and visitation. Unfortunately, there are times when one parent refuses to let the other parent have their kids on their scheduled days.
In other cases, the non-custodial parent doesn’t show up for their scheduled visitation. If this happens, you can file a motion with the court to change the order. We will discuss this in more detail below.
If you were not married to your children’s other parent, you wouldn’t have a judgment of divorce or court order. You may not have a prenuptial agreement either. You may have nothing about child custody and visitation in writing. If so, you may want to petition the court for visitation rights.
What if a Parent Doesn’t Comply With the Child Custody Order?
A parent who wants visitation with their children can file a petition in family court. Judges usually hear visitation and custody matters during the same hearing. However, you can file a separate motion requesting visitation.
In the State of New York, parents aren’t the only people who can petition the court for visitation rights. Siblings and grandparents may also file a petition requesting an order of visitation. However, the rights of the parents are superior to non-parent relatives. Between you and your spouse, the court will base its determination on the best interests of the child. If the judge believes your visitation schedule is best for your children, they will grant your request.
Of course, the other parent will likely file a response to your request for visitation. For some couples, any discussion about child custody and visitation is acrimonious. For others, determining custody and visitation is relatively easy.
Courts generally impose a specific visitation schedule, and the custodial parent cannot interfere with the non-custodial parent's visitation rights. If they attempt to interfere, the court may hold them in contempt of the court. If this occurs consistently, the court could decide to alter custody.
New York Visitation Rights at a Glance
You must understand New York‘s laws on visitation rights before you file your petition. The best way to do this is to talk to an experienced child custody lawyer. Below are additional resources that may prove helpful.
Types of Visitation
- Unsupervised visits: The parent can visit the child without any other person present.
- Supervised visits: A person (someone from a local social services department) must be present during the visit because the court has determined that the parent could be harmful to the child.
- Therapeutic supervised visits: A mental health professional monitors the visit because of concern regarding the parenting skills of the visiting parent.
Denial of Visitation
- A parent deserves visitation unless the court determines it's not in the child's best interests. For example, if the parent murdered the child's other parent or relative, the court is able, by statute, to deny the offending parent custody or visitation. The court may also deny visitation if the parent has committed child abuse.
- The court can't force visitation if the parent refuses to visit the child. However, the court can modify that parent's visitation schedule.
Monitored Transfer and Mutual Exchange
Suppose the court determines that the transfer of the child from one parent to the other would be physically or emotionally damaging to the child due to domestic violence. In that case, it can order that the transfer take place in the presence of a neutral third party or in a designated safe location.
Related Resources for New York Visitation Rights:
Discuss New York Visitation Rights with an Experienced Attorney
If you plan to petition the courts for child visitation rights, you want someone specializing in this type of law to handle your case. You wouldn’t want to hire a personal injury lawyer to handle your custody case. Nor would you hire a child custody attorney to handle your car accident case.
Visit Findlaw's attorney directory to find a family attorney near you.