FAMILY LAW : Custody and Visitation

A custody trial can be one of the most stressful events for a parent to endure. There is the concern, of course, of the outcome, coupled with the effect of the trial and outcome on the children, complicated of course by the mounting costs of the litigation. During the process, both parties begin a campaign of mudslinging and life under a microscope can be stressful and exhausting for all involved.

During the court action, various applications are made for temporary custody and parenting time. The process begins when one party files a petition with the Family Court for custody or parenting time. Then the other party can cross file creating a situation where the Family Court Judge has to decide the outcome. This will be done after a hearing or trial where the Judge will hear evidence from witnesses, and view documents all of which will determine the fitness of the parent seeking custody, or time with the child.

Often there is the appointment of an smithtown NY Family lawyer for the Child, previously known as a Law Guardian. This is a court appointed attorney who will represent the children’s interests in the custody or visitation proceeding. The Attorney for the Child will meet with the children and, depending on the age of the child or children will represent the child’s desires in the outcome of the proceeding advocating for the position of the child in which parent he or she wishes to reside with.

Additionally during the matter there is often the appointment of a forensic expert chosen by the Court. This is a psychologist, social worker or psychiatrist who will meet with both parties and the children and proffer a report containing his or her findings. That expert may be called by either party as a witness to testify at the trial regarding the findings. The Court will weigh the expert’s testimony in determining which parent the children should reside with and how the parenting time schedule should work. The expert will also give testimony regarding decision making for the children.

There are multiple factors that the Judge will consider in a custody trial, all of which exist to assist the Judge in determining the Best Interests of the Child. These factors have been developed over time through New York case law. In evaluating a custody case, the Judge will look at which parent had been the primary caretaker, and for how long the current custodial arrangement had been in place; the need for stability and continuity in the child’s life; the financial abilities of the parents; the work schedules of the parents and the need for day care for the children; the quality of the environment at the child’s home; the guidance provided by each parent; the ability of each parent to provide for the emotional and intellectual development of the child; the relative fitness of a parent; in older children the Court will consider the desires of the child; the Court will look at the ability of each parent to encourage the child’s parental relationship with the other parent, fostering feelings of love and affection in the child for the other parent; siblings and relationships with other family members are considered; the Court also looks at the existence of physical or mental abuse of one party to the other, even if it does not occur in front of the children.

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