Going through a divorce is a difficult process. It’s even more complicated when there are children involved. It is important to understand the legal issues affecting the children of the marriage. For one, there is a difference between the terms custody and visitation. In reality, these are two distinct legal rights that determine when and how you can spend time with a child. Learn more about visitation rights in New York and how Brooklyn child visitation lawyers can help.
Custody is a legal term describing the type of authority a person has over a child. Generally, this authority concerns decision making power about the minor’s education, health and other types of care. This is different from the decision process regarding the child’s residence.
Under New York law, there are two types of custody. With joint custody, both parents (or the parent and another individual) have the power to make decisions for the child’s well-being. In a sole custody situation, one parent will have the legal right to make these decisions.
Part of the custody decision concerns establishing the child’s primary residence. The home of the parent who has physical custody over the child is called the primary placement. When the child is allowed to visit the parent who does not have physical custody, it is referred to as visitation.
In New York, either parent can request custody. The courts do not have a pre-established preference for one parent or the other. In some cases, another relative may be granted custody if it is in the best interests of the child.
Visitation can be granted by law. In New York state, sections 1081 through 1083, and section 1085 of the Family Court Act set forth the rules for visitation. According to these statutes, a non-custodial parent or the grandparents of the child can file a petition to establish visitation rights. Once the court receives this request, a background check is performed by the applicable department of social services. Legal counsel for the child will have the opportunity to oppose the petition if necessary. When opposition occurs, a hearing must be scheduled to resolve the matter.
Types of Visitation
In Brooklyn, there are two basic types of visitation available to the non-custodial parent. When a parent has background issues, the court may order supervised visits. This means that a representative from a child services department will supervise the visit to ensure the child’s safety. Supervised visits may also include a mental health professional who assesses the parent’s child-rearing skills. In some cases, supervised visits may be held in a controlled environment, such as a designated area in a public services office.
In contrast, unsupervised visits allow the non-custodial parent to care for the child without additional oversight. Clearly, most parents or grandparents seeking visitation prefer this type of arrangement. This allows the non-custodial parent to have more freedom to interact with the child, and to engage in bonding activities such as outings or over-night stays.
The law prefers to grant visitation to non-custodial parents. In fact, the parent is entitled to consistent, meaningful visitation. However, there are some situations where court can deny the request. This usually occurs in cases where petitioner has a dangerous criminal history, or other qualities that don’t support the best interests of the child. Convictions for murder (of a relative) will typically disqualify a parent from visitation rights. Yet, there are some exceptions to this rule. First, a child of an appropriate age can render consent to visitation with the parent. Second, the custodial parent can assent to the visitation.
If there are issues preventing the court from authorizing unsupervised visits, a Brooklyn child visitation lawyer can advocate on your behalf. Be aware that an order granting or denying visitation will continue until it is modified. Modifications of an order can only occur upon a showing of good cause. Consult a Brooklyn visitation attorney for assistance in obtaining an modification.
Either parent can submit a petition to change the visitation order. This allows the court to hold a hearing to consider the matter. In order to be successful, it must be shown that there is a substantial change in the circumstances. The court will analyze the situation using the standard of the child’s best interest. The court can take action to modify the order to protect the child.
When Visitation is Hampered by the Custodial Parent
The grant of visitation is actually a court order. When the custodial parent refuses to participate, or makes the process unreasonably burdensome, the aggrieved party can file a petition. If the allegations prove to be true, the court may hold the party in contempt. In situations where the conduct is repetitive, the court may change the custody order altogether. Get help from a Brooklyn child visitation lawyer if you are experiencing interference with a court order.