Child Custody and Visitation

When consulting with Vargha Law regarding divorce or separation, one of the first things a client usually asks is, “What about custody or visitation with my child/ren?” Sometimes the parents are able to come to an agreement on matters relating to the children: custody, visitation, child support, etc., but oftentimes they cannot.

It is absolutely vital that you have reliable legal representation when it comes to negotiating your parental rights. As an experienced family law attorney, Mike Vargha can provide advice and peace of mind regarding your rights to custody or visitation with your child/ren. 

The court has a duty to protect the best interests of the child/ren involved in a divorce case. While it may be difficult, in order to come to a successful custody arrangement parents must separate their personal feelings about one another and concentrate on their shared responsibilities to their children. Being able to communicate in a civil matter with your ex-partner is important for the well-being of your child/ren. Remember, any court order will likely mean that your ex will continue to be part of your child’s life (and yours) for many years to come. 

However, if the parents are unable to reach an agreement as to custody, the court will make that decision for them. In making a determination, the court must base its decision on what it believes to be “in the best interest of the child”. This is known as the Best Interest Standard, and refers to a number of factors that the court considers before deciding what best serves the minor and who is best suited to take care of the child. Although the child’s health and safety are of primary concern to the court, it also considers many other factors, including:

  • Which parent has been the main caregiver of the child
  • The individuals parenting skills and their ability to provide for the child’s special needs, if any
  • The mental and physical health of the parent
  • Whether there is a history of domestic violence in the family
  • The work schedules of each parent and their childcare plans
  • The child’s relationship with siblings or other family members
  • The child’s wishes (if they are of sufficient age and maturity)
  • The parents ability to cooperate with each other

Custody Determinations

 A custody determination by the court is referred to as an “Order of Custody” and can result in Sole legal custody (meaning that one parent will have the right to make decisions about the child/rens education, religious upbringing, medical treatments, etc.) or Joint Custody, which means that both parents will have rights in regard to the choices made in the child/ren’s upbringing.  

In deciding who the child/ren will live with, the Judge will consider many different factors, for example: if either parent has a history of domestic violence, criminal convictions, substance abuse, or an inappropriate living situation, that parent may not receive primary custody. That parent might only be given Limited Visitation with their child/ren until the court believes they no longer pose any danger to the child/ren. But if both parents are reasonable, competent, and caring people, the judge will likely give them joint custody so that the children will spend time with both parents. 


Can a Non-Parent Get Custody of the Children?

A non-parent (grandparent, aunt, uncle, a family member or person who has a stated interest in the child’s welfare) can seek an order of custody against one or both parents, but the non-parent must first prove the existence of “Extraordinary Circumstances.”  Examples of extraordinary circumstances include:

  • The child is being neglected or abused
  • Their parent is incarcerated (and the other parent is unable to assume care and supervision of the child)
  • The child has been abandoned
  • The child’s well-being is otherwise at serious risk

Once a non-parent establishes that extraordinary circumstances exist, the court will apply the best interest standard in determining whether or not to grant the non-parent’s petition for custody. If the non-parent fails to establish extraordinary circumstances, the Court will likely dismiss the non-parent’s petition.

My Circumstances Have Changed, Can I Get Custody of My Child?

While it is possible for a custody order to be changed (this is known as a “modification”), the party seeking the change must show that a “Change in Circumstances” has occurred since the date of the last order. If the Petitioner can establish a change of circumstances, the court will then again apply the best interest standard to the case.

My Ex Will Have Custody But I Still Want To See My Kids

As the Non-Custodial Parent you have rights. Typically the court decides that it is in the best interest of the child/ren to have a relationship with the non-custodial parent unless there are valid concerns about the child being left alone with the parent who is seeking visitation. In such cases the court may choose to grant “Supervised Visitation” meaning that the child and noncustodial parent will be allowed to have visits with one another but these visits will be supervised in their entirety by a third party. Otherwise, the non-custodial parent will usually be granted unsupervised visits.

My Ex Wants To Move Out of State With Our Kids, Can They?

Typically, a parent can’t move to another state with the child without the other parent’s consent and/or prior approval from the court that issued the original custody order. If the custodial parent relocates the child without the court’s permission, and against the noncustodial parent’s wishes, a judge may sanction (punish) the custodial parent with a contempt order, which can include fines and jail time. The Judge could even change custody in favor of the noncustodial parent.

In deciding whether a Custodial Parent will be allowed to relocate with the child, the law in New York is that the best interest of the child applies, and the court will weigh the benefits of the move against the disruption to the child and the noncustodial parent’s visitation rights.

In deciding whether or not a custodial parent might move the child to another state, the court will consider whether the relocation will provide a real benefit to the child, such as an improvement in the overall quality of life due to:

  • A new job opportunity or increased income for the custodial parent
  • Closer proximity to the custodial parent’s extended family
  • An educational opportunity, or
  • A new marriage.

The Judge will then need to weigh these potential benefits against the possible adverse effect on the child from reduced contact with the noncustodial parent. Relocation requests can be difficult to win, particularly if the noncustodial parent objects to the move.

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