Child Custody – Ten Frequently Asked Questions “FAQS”

As a child custody lawyer for New York, and Long Island, I know that people involved with a child custody case often Family-Breakfast-300x200have questions about it.  The complexities of best interests and various pre-set standards can make it difficult for parents to understand exactly what they’re getting into when they approach a custody case. With that in mind, I’ve put together this quick introduction into some of the most frequently asked questions I encounter as a child custody attorney.

1.     What Is The “Best Interests” Standard

For most legal matters, the court focuses on resolving issues by considering the past and present behavior of the parties involved. However, in child custody, the court must use that information to look towards the future, and predict which parent may offer a healthier, more successful environment for the child in question. By examining past behavior, and sometimes engaging psychological or other expert testimony, New York Courts must determine outcomes based on their opinion of the “best interests” of the child.

2.     What does the “Primary Caretaker” mean ?

As a child custody lawyer, I’ve been involved with numerous complex cases.  Although there are many facts and issues that a Judge or Referee should weigh to decide the best interests of the child for custody and parenting time, one important facet (but by no means determinative) is who has been the primary caretaker.  In very young children this might prove to be more important than for older children because the younger a child is, there is usually less history and therefore less other facts to explore.   In some instances, the courts will allow for preferences to be shown towards a parent that demonstrates their position as the “primary caretaker” for a child during the time of a marriage. For instance, if that parent had spent more time caring for the child, that is an indicator of who is the primary caretaker. Though the primary caretaker standard isn’t always prominent within court considerations, it is regarded as significant as many psychologists outline the importance of the bond between children and their primary caretaker.

3.     What is “Serving Process” in Child Custody Cases?

When the court is addressed with a child custody case, the law requires for papers to be served to the other party, in the forms of a petition and summons. The parent filing the case must work with their child custody attorney to ensure that the other party receives the papers, often through in-hand delivery.  Sometimes the court sends the papers to the parties themselves, but usually the lawyer for the Plaintiff or the Petitioner is tasked with making sure the papers are served. The law recognizes the importance of ensuring that each parent can make a claim on the behalf of the child’s best interests. If papers are not able to be delivered to the Defendant or Respondent with due diligence, the lawyer for the party trying to have the papers served may be able to have the court order service by some alternate means such as posting the papers to the persons door and also mailing them or publishing in a newspaper or even in a recent divorce case service by Facebook was allowed.  In hand delivery of papers, however, is the preferred method.

4.     What are “In Camera” Interviews

Contrary to belief, “In Camera” interviews don’t necessarily involve cameras. Instead, these interviews focus on giving a child in a custody case access to a safe location where he or she can discuss their needs or preferences with the judge, without worrying about any repercussions from a parent. Often, the purpose of these interviews is to give the child the freedom to talk about his or her concerns without the presence of additional parties like attorneys and parents. These interviews usually take place in the chambers of the Judge assigned to the case.

5.     When Can Modification Requests Be Dismissed without a Hearing?

The New York Court can choose to dismiss a modification request without a hearing when there is no evidence to demonstrate a significant change of circumstances, from the last custody order, that would require a change of custody. It is not enough for any party to suggest accusations regarding circumstances, or provide self-serving allegations without proof. Evidence of changes in circumstances must be provided by you and your child custody lawyer.

6.     What are Parent Coordinators?

In child custody cases, parent coordinators are professionals that provide guidance to parties interested in pursuing joint legal custody over a child. These professionals are trained to offer dispute-resolution options for high-conflict child custody cases, and focus on putting the child first above anything else. These professionals can help to ensure that the decisions made by both parties during a child custody case address the best interests of the child in question.  Parent coordinators could be the solution for people that may have issues coordinating parenting with their child after the court case is over and all they are left with is a court order.

7.     Can Child Custody be Terms be Included in Separation Agreements?

According to New York Domestic Relations Law, prenuptial, postnuptial, and separation agreements can include information on a range of topics, including provisions for the care, custody, maintenance, and education of the party’s children. Domestic relations law 240 provides that the court has the discretion to enter custody orders based on the best interests of the child, and the circumstances of the case. This means that if the terms of an agreement do not meet the best interests test when a court reviews them, the agreement might not be enforced in regards to those terms.  Since a Separation Agreement contemplates the parties living apart after the agreement, it is usually more likely that terms for child custody and child support in a Separation Agreement will be enforced as opposed to prenuptial and other postnuptial agreements.  Contemplation of what terms to include regarding children, if any at all, is an important topic to discuss with your child custody lawyer and family law attorney.

8.     When Should the Court Order Joint Custody?

In New York Courts, the “joint custody” term usually refers to joint legal custody. This is different than joint physical custody. Legal joint custody gives both parents the right to be involved with important decisions regarding their child’s future. Though joint custody can be a positive option for some parents, it’s worth noting that most courts will not force an order of joint custody. Ultimately, if the couple doesn’t get along well enough to make the appropriate decisions together for their child, joint custody is not in that child’s best interests.

9.     What are the Different Types of Child Custody arrangements?

There are two major areas that must be decided during a child custody case, as your child custody attorney will inform you. The first matter is where the child lives, which is physical custody. The second matter is who has control over major medical, educational, and other crucial decisions for the child, which is legal custody. A parent can either have “full” or “sole” custody, or both parents may be given joint legal custody over a child. There are also solutions such as shared residential and legal custody, and hybrid options for custody and visitation matters.

10. What are Forensics in Child Custody Cases?

Forensics are something offered by child custody lawyers during a case when there are disputes about custody, visitation, or parenting time for minor children. Forensics is the term that is used for reports and investigations that are implemented by psychological professionals who work on the behalf of the court. These reports are then used to help aid the court in making decisions according to the best interests of the child in question. Forensic investigators can include psychiatrics, psychologists, or social workers.

The complexities of child custody cases can be very difficult to understand, and you may find that you need some extra guidance, particularly when dealing with such an emotional and turbulent matter. For more guidance into the specifics of your case, reach out to me, Mr. Darren M. Shapiro to learn more. You can contact me to book your free initial consultation through our online contact form, or over the phone at (516) 333-6555.