Child custody, visitation, and parenting time cases are complicated for many reasons. The courts of New York are required to make decisions based on the “best interests” of the child or children involved. This requires a careful consideration of multiple factors, such as which parent can provide the child with the right level of care, the parenting skills of each parent, and more. It can take time for the court to be able to hold a full evidentiary hearing in order for both sides to present all the evidence necessary to make decisions regarding a child’s best interests. Until that time, though, temporary orders for visitation, parenting time, and child custody may be provided to guide parents while the final order is pending. In Family Court they are called temporary orders and in a divorce, in the Supreme Court they are often called “Pendente Lite” orders which is a Latin legal term for an order while the case is pending.
A final order of custody, without the consent of the parties involved, if there has never been a prior custody determination, should not be made without a full evidentiary hearing that allows the courts to consider the factors surrounding “best interests” carefully. However, full evidentiary hearings may not happen for a long time, sometimes many months. If one side or the other in the case requests a visitation or parenting schedule when waiting for the final order to be provided, I find that the courts often attempt to ensure that each side has meaningful time with the child or children. The preferred method of the courts is generally to get the consent of the parents to a schedule that they both agree to for temporary orders.
Prior to a visitation or custody order being laid out, the court is required, by statute, to review things like “article ten” or neglect and abuse case history for both parents, and any relevant warrants issued by the supreme or family court regarding visitation, custody, neglect, abuse, and orders of protection. These searches will be done before a visitation schedule is approved by the court, even if the parties’ consent or agree to the schedule.
Providing Temporary Visitation and Parenting Schedules
Even when providing temporary visitation orders or parenting time, the courts of New York must consider the best interests of the children. If parties involved in a case don’t consent to a schedule provided by the courts, then the searches outlined above into warrants, neglect, and orders of protection may be carried out to aid the courts in determining what an appropriate temporary visitation order or parenting time order may be. In my experience, the courts tend to maintain any status quo for parenting and visitation that the parties had already established amongst themselves. This is often the easiest solution until a full hearing can occur.
Pending the necessary court hearings and sometimes forensic examinations, parties are generally at the mercy of the trial court to outline a fair solution for temporary visitation. This is because temporary orders are usually not appealable. In some cases, the appellate court could grant permission for an appeal of a temporary order. In its discretion, the appellate court may review temporary visitation orders in circumstances deemed appropriate. The right to appeals of final orders exists as a right, on the other hand, so sometimes the review of the trial court’s decisions in the case can only be made if someone appeals the final order. A final order does not mean a forever order, rather it just means the order that terminates the current court cases. In custody and visitation cases, upon a substantial change of circumstances, modifications of the final orders can be sought.
There is a chance that the courts will order something that goes against the status quo that has been going on if there are concerns about the best interests, wellbeing, or safety of the children involved during visitation with either parent. If allegations have been made regarding abuse or neglect of the child against either parent, then this could merit an order of protection. Courts in New York have the power to order child protective services and other groups to conduct quick investigations that will help to determine whether there are circumstances that require orders to go against the status quo or merit in favor of supervised parenting time or the lack of overnight time to either side.
If there are circumstances in play that the Child Protective Services agencies believe should lead to a founded or indicated determination regarding neglect or abuse, then this could impact the outcomes of both the temporary and final orders for visitation, parenting time and custody. Often, quick investigations are a valuable way to gain information before a temporary order can be established. In cases where a family offense proceeding or order of protection case is pending, then the courts of New York may order an immediate proceeding on that case. The courts can also hold the application for temporary visitation or custody in “abeyance” as they wait for the results of the family offense or order of protection case.
After temporary orders have been made, either via a ruling or through the consent of the parents, these orders generally won’t be lightly cast aside until a full order is established. I will discuss the issue of modifying or vacating temporary visitation or custody orders in future blogs. If you would like to learn more about custody, visitation, or parenting time cases in the meantime, please reach out to me, Mr. Darren M Shapiro to schedule your initial consultation, up to the first half hour is free, at (516) 333-6555 or via our contact form.