Child custody law in the state of New York is handled by the Family Courts. These courts are unlike any you have probably ever dealt with before. They are largely based on the existing body of case law, not statutory law. This means that, in practice, the proceedings of child custody cases are subjected to the personal judgements of judges to an extent not approached in other areas of the law.
To properly navigate this often confusing and subjective system, you need an experienced child custody lawyer in your corner. Going through a child custody hearing in the state of New York without the assistance of a skilled lawyer who specializes in these cases is a recipe for disaster. There is little chance that following such as strategy you will be able to achieve your legal goals.
In the state of New York, there are two broad types of custody. The first is referred to as physical custody. This usually awarded to the parent with whom the child lives. The second type of custody is legal custody. This may be jointly awarded to both parents or may be selectively awarded to one or the other. A parent with no physical custody may still enjoy joint legal custody. And a parent without legal custody will still usually enjoy visitation rights with their children.
Legal custody usually concerns three main categories. A parent with legal custody has the full right to approve or veto any decision pertaining to either religion, education or healthcare of the child. Even if a parent does not enjoy legal custody, joint or full, they may still be able to petition the court for an injunction if they feel that the decisions being taken by the custodial parent are not in the best interests of the child.
While laws such as Domestic Relations Law 70 do have bearing on the way in which the Family Courts are run, precedential case law forms the majority of the basis of this area of the law in New York State.
For example, the case of Bennett v. Jeffreys established that, when a child has resided with a guardian for a sufficient length of time, even the normally unassailable claim by the biological mother to custodianship can be declared invalid. This case reconciled two opposing legal doctrines within the Family Court system and set a precedent for judges in the future to follow. It is illustrative of the way in which the Family Courts and all child custody cases in the state of New York have been given their legal framework.
Because there is no guilt or innocence in the Family Court system, other than as is incidentally established throughout the proceedings, the real job of Family Court attorneys is to help their clients put their best foot forward throughout the child custody hearing.
Things that may seem innocuous can make a large difference in hearings that are often decided on the whim of a judge. For example, the tendency of some clients to make damaging or self-impeaching statements in court can be successfully mitigated by a lawyer who handles all interactions with the judge and the law guardian himself.
A good lawyer will also be able to muster expert witnesses who can counter any negative information that the state or the opposing spouse may present regarding such things as the client’s mental health history or interactions with the child.