Child Custody

I.     WHAT IS LEGAL CUSTODY?

Legal custody is the ability to make decisions for a child, including medical, educational, and religious decisions.  Joint legal custody is where both parents are granted legal custody of a child and expected to work cooperatively to make decisions for the child.  Sole legal custody is where only one parent retains legal custody of the child.

II.     WHAT IS PHYSICAL CUSTODY?

Physical custody refers to which parent the child primarily lives with.  The parent who the child resides with for 51% of the time or more has primary physical custody.  When both parents have exactly equal time with the child, 50-50, that is referred to as shared physical custody.

Visitation is a “joint right”of both the noncustodial parent and of the child. Weiss v. Weiss, 436 N.Y.S.2d 862 (N.Y. 1981).  It is presumed to be in a child’s best interests. Tanner v. Tanner, 826 N.Y.S.2d 503, 504 (3d Dept. 2006).

Accordingly, outright denial of visitation is considered “a drastic remedy that it should be ordered only when there are compelling reasons, and there must be substantial evidence that such visitation is detrimental to the children’s welfare.” Matter of Adam H., 195 A.D.2d 1074 (4th Dept. 1993); see also, Farhi v. Farhi, 407 N.Y.S.2d 326, 327 (4th Dept. 1978).  Thus,

a parent may not be deprived of his or her right to reasonable and meaningful access to [his or her] children…unless exceptional circumstances have been presented to the court. The term “exceptional circumstances” or “exceptional reasons” is invariably associated with a situation where either the exercise of such right is inimical to the welfare of the children or the parent has in some manner forfeited his or her right to such access.

Strahl v. Strahl, 414 N.Y.S.2d 184, 186 (2d Dept. 1979) (citations omitted, emphasis added).

Importantly, the courts will not just consider the child’s physical welfare, but also emotional and psychological welfare:  “Clearly, when the exposure of a child to one of its parents presents a risk of physical harm, a court should deny visitation…a parent’s visitation should just as clearly be denied by a court where it harms the child by producing serious emotional strain or disturbance.” Hotze v. Hotze, 394 N.Y.S.2d 755, 756 (4th Dept. 1977).

Although denial of visitation is considered a drastic remedy, it can be achieved under certain circumstances.  Making or defending against a request for such denial must be taken very seriously and your case must be thoroughly prepared and supported by admissible evidence.

IV.      RESTRICTING A PARENT’S CONDUCT

An order of custody and parenting time may impose restrictions on either parent in furtherance of the child’s best interests.  These restrictions can include restricting the parent from exposing the child from to the parent’s boyfriend or girlfriend, the parent while under the influence of alcohol, corporal punishment, or even second hand cigarette smoke. See, DeMatteo v. DeMatteo, 749 N.Y.S.2d 671 (Oneida County, Supreme Court 2002).

V.      GRANDPARENT & NON-PARENT RIGHTS TO CUSTODY & VISITATION

In all of this troublesome and troubled area[,] there is a fundamental principle.  Neither law, nor policy, nor the tenets of our society would allow a child to be separated by officials of the State from its parent unless the circumstances are compelling.  Neither the lawyers nor Judges in the judicial system nor the experts in psychology or social welfare may displace the primary responsibility of child-raising that naturally and legally falls to those who conceive and bear children.  Again, this is not so much because it is their “right”, but because it is their responsibility.

Bennett v. Jeffreys, 356 N.E.2d 277, 285 (N.Y. 1976).  Thus, parents have both a right and responsibility to care for their own children.  Accordingly,  “under existing constitutional principles, the court and the law are powerless to supplant parents except for grievous cause or necessity. Bennett, 356 N.E.2d  at 281 (citing, Stanley v. Illinois, 405 U.S. 645, 651 (1972)).

However, the Legislature has recognized that the grandparent relationship is often a precious part of a child’s experience, involving benefits to the child which the child cannot derive from any other relationship.

Therefore,”[t]he day is long past in this State when the right of a parent to the custody of his or her child, where the extraordinary circumstances are present, would be enforced inexorably, contrary to the best interest of the child, on the theory solely of an absolute legal right.”  See, Bennett, 356 N.E.2d at  281 (N.Y. 1976).

Thus, it is well established that a non-parent has standing to seek custody rights with respect to a child in the presence of “extraordinary circumstances.” These extraordinary circumstances include:

  • surrender,
  • abandonment,
  • persisting neglect,
  • unfitness,
  • other equivalent but rare extraordinary circumstances which would drastically affect the welfare of the child. Bennett, 356 N.E.2d at  281,
  • a prolonged separation of the respondent parent and the child for at least twenty-four continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the petitioner grandparent or grandparents. DRL § 72.

It is the non-parent’s burden to prove that extraordinary circumstances exist. Michael G.B. v. Angela L.B., 219 A.D.2d 289, 291 (4th Dept. 1996).

But, again  “…so long as the parental rights have not been forfeited by gross misconduct or other behavior evincing utter indifference and irresponsibility, the natural parent may not be supplanted . . . . For once it is found that the parent is fit, and has neither abandoned, surrendered, nor otherwise forfeited parental rights, the inquiry ends and the natural parent may not be deprived the custody of his or her child.” Adoption of L., 61 N.Y.2d at 427 (citations omitted)

Nonetheless, a loving grandparent who has been an important part of a child’s life is not without recourse.  Grandparents may still apply for visitation rights under certain circumstances. Emanuel S., 573 N.Y.S.2d 36 at 38 (N.Y. 1991).  These circumstances include where:

  • either or both of the parents of a minor child, residing within this state, is or are deceased, or
  • equity would see fit to intervene.

DRL § 72(1).

If you have any questions or concerns, feel free to email us [email protected], or call at (315) 422-1311.