Custody and Visitation

I need a family law attorney, New York, NY


Custody of your children is one of the most sensitive topics in a divorce. In New York State, the court awards custody based on the best interests of the child, with no legal presumption that one parent is better than the other, or that joint custody is better than sole custody. New York courts use various factors to determine the best interests of the child and, in contested cases, a judge will appoint an Attorney for the Child, who is responsible for communicating the child’s wishes and desires to the court. At Kelly & Knaplund, a Westchester family law attorney will help you settle custody and visitation as amicably as possible with your spouse.

Physical custody v. legal custody

A parent has physical, or residential, custody if the children live with him or her. Legal custody means that a parent is authorized to make important decisions about the children and their care: school, religious practice, doctors, activities, tutoring, etc. Parents may have joint legal custody even if the children primarily reside with one parent and have an access schedule for visitation with the other parent. Although the law does not state a preference for joint custody, there is an underlying judicial belief that children should have access to both parents, even if that contact consists of supervised visitation, in instances of substance abuse and domestic violence.

Parenting plan

The best way to decide on custody and visitation is to negotiate an access schedule and co-parenting plan with your spouse, through counsel, in mediation, or with the help of a parenting coordinator. A parenting plan usually includes a weekday/weekend and holiday schedule for the children’s time with each parent, provisions for decision-making and how to resolve conflicts if the parents disagree, a provision or distance limit if either parent wishes to relocate, and a children’s “bill of rights” for respectful treatment.

Forensic expert

If you and your spouse cannot agree on custody, the court will appoint an Attorney for the Child or Children, as described above. The court may also appoint a forensic expert, a mental health professional who interviews all family members and submits a report with findings for custody and visitation. The purpose of a forensic report is to aid the judge or referee during a custody trial, but a forensic report often induces the parties to settle once they know its contents. The report may be more favorable to one spouse than the other, and may include negative material about one or both parents. The court is not bound by findings in the report, but since the report can be influential, it is best to try to settle your custody dispute, rather than letting the judge rule.

Westchester family law attorney

A Westchester family law attorney at Kelly & Knaplund can mediate a parenting plan with you and your spouse separately or as part of your divorce. Mediation and collaborative law—another problem-solving, rather than litigating, approach to custody and visitation—protect your children from open hostility and the damaging tactics of a court battle. Children do better when their parents can work together to make a plan for the family’s future.

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