It is rarely the case that both parties agree in a New York child custody proceeding. More often than not, one party initiates the proceeding, leaving the non-filing party a choice of how to proceed. If the non-filing party believes that they have a claim against the party that filed the original petition, they should be sure to include their claim in a response to the original petition or, if the claim is only tangentially related, file a cross-petition.
New York Civil Practice Laws and Rules section 602 discusses the consolidation of related matters. Specifically, the statute allows for a court to consolidate matters “involving a common question of law or fact.” Importantly, courts are left with discretion regarding whether to consolidate multiple issues. However, section 602 does provide some guidance, indicating that the purpose of consolidation is to “avoid unnecessary costs or delay.”
Husband and wife have been divorced for several years. Currently, husband has primary physical custody, and wife has visitation privileges. Husband filed a petition in a New York court, asking the judge to order that wife’s future visits with the children are supervised by the court. In response, wife may ask the court to modify the original order to grant her primary custody.
Suppose wife waits until the trial regarding the supervision of her visits is underway, and she has not yet raised her claim seeking custody. In this situation, she should file a petition with the court as soon as practicable. It is likely that the court would allow the joinder of the two issues because the court’s refusal to do so would result in the re-litigation of similar issues. The Wife’s petition in this scenario might be subject to dismissal for failure to allege a substantial change of circumstances if the facts dictate.
The Importance of Being Timely
Depending on the specific facts at issue, a non-filing party could potentially lose out on the opportunity of raising their claim. For example, if a non-filing party’s claim is closely related to the subject matter of the original petition, a failure to bring the claim could constitute the party’s waiver of that claim. Of course, these are very fact-specific scenarios, and anyone involved in a New York child custody battle should seek the counsel of a dedicated Long Island child custody attorney.
Are You in the Middle of a New York Child Custody Battle?
If you are currently involved in a New York child custody dispute, you should consult with a dedicated Long Island family law attorney. The sooner you reach out to an attorney, the more time he will have to properly inform you of your options and prepare your case. The Law and Mediation Office of Darren M. Shapiro handles all types of New York family law issues, including child custody disputes and modification orders. We approach each client as an individual with their own unique values and desires, and we customize our representation accordingly. To learn more about how Attorney Shapiro can help you, call 516-333-6555 to schedule a free consultation today.
More Blog Posts:
New York Divorce and Claiming Children as Dependents Under the New Tax Law, Long Island Family Law and Mediation Blog, January 15, 2018
Addressing Client Rights and Responsibilities in Family Law Cases, Long Island Family Law and Mediation Blog, February 3, 2018