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Sunday, October 30, 2011

Child Custody and Child Visitation Issues in New York

Question: How do I get custody of my child?
Question Detail: My son is almost 9 months old now. His father has not been in his life, and can't support him financially even though we are still married. He has only seen my son a handful of times, and not once has bought anything for him. He has told me on many occasions that he wants to sign his rights over, however now he won't. How do I get custody of my child? We are not divorced and I am considering that too.

You must file in your local family court for legal sole custody of your child.  You can see what information is needed here:  http://www.nycourts.gov/forms/familycourt/pdfs/GF-17.pdf

Here are some FAQs regarding the petition for custody:

Who May File a Petition for an Order of Custody?
A parent, grandparent or a person with a substantial connection or relationship with the child may file a petition in Family Court requesting that the court place the child in his or her custody. A copy of the petition and a summons must be served upon (delivered personally to) the person or parties who presently have custody of the child. If the child's parents are separated and one parent seeks a custody order, that parent must have the papers served upon the other parent. If a non-parent is seeking custody of the child, then both of the child's parents must be served.
There are no filing fees in Family Court.

What Happens at the Hearing?
If the parties agree about custody of the child, the judge may take testimony from both parties and enter an order of custody on consent, without the need for a formal hearing. If the parties cannot reach an agreement about custody, the court will hold a hearing, taking testimony from both sides, and may appoint a lawyer to represent the child. The court may order an investigation and report from a social services agency or mental health professional. After considering the evidence presented, the court will award custody based upon what is in the child's best interests.
In some counties in New York City, a custody or visitation case may be heard by a Family Court "court attorney-referee", who may hear and decide the case and issue orders.

What Happens If One Side Interferes with the Custody or Visitation That Was Ordered by the Court? If a court order gives certain custody or visitation rights to a party and the other party fails to obey the order, the complaining party may file a petition alleging a violation of the order. After the court holds a hearing, the judge may change the order and/or impose sanctions on the party who has failed to comply with the order.

Are there ways to settle custody/visitation cases without going to trial? When you come to court about custody or visitation with your child, you may have a choice: whether to litigate your case before a judge (or referee) or to have your case referred to mediation.
Mediation is a free, voluntary and confidential process where you and the other parent work with a neutral mediator to create your own parenting plan.

Question: What can I do legally to prevent my son from being in the custody of his father?
Question Detail: My son will be 3 years old in October. His father is not paying child support and has never has. He would like to keep him overnight. I don't want my son together with him as he is on drugs, he has to take pills for his anger and even his dog has died his abuse. What can I do?

Answer:   You need to apply in Family Court for a formal order awarding child custody to yourself, and an order limiting visitation to daytime visits and at a public location.  Until you get the order, there's nothing you can do to prevent him from spending time with your son.

Question: What are my chances as a father of getting custody of my kids during a divorce?
Question Detail: What's the likelihood in the event of a divorce, that I'd get custody of my kids' from my wife? I cook, clean, do homework, completely involved with their entire academic life, make sure the kids' get to and from their extracurricular activities. All of that while working. I just became employed after 2-1/2 years of being out of work, but performed ALL the same duties and responsibilities while working since we've been married with both kids.

Answer:  To be awarded full custody of your children you would have to show that it would be in the best interests of the children to live with you and have you as the sole parent in charge of custody.  If your wife isn't doing anything that would be dangerous or not in the best interests of your children, then the court will probably not take custody away from her.  However, going on what you have stated here, you at least have grounds to try and get shared custody of the children, meaning that their time would be split between you and your wife. 

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