Special Circumstances in New York Child Custody

No two child custody cases are the same. Find information below on circumstances that may arise during your case.

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History of crime, violence or substance abuse

Parents who have a history of crime, violence or substance abuse are less likely to be awarded custody than parents who do not. This is especially true if they have recent convictions, ongoing investigations or active protection orders against them.

These parents are also unlikely to have a parenting plan approved if it gives them custody or unsupervised time with the child.

Still, outcomes for parents with past crimes, violence or substance abuse can vary.

  • Sometimes these parents are awarded visitation ― often supervised visitation (explained below).
  • If the parent can prove reform, they may get custody.
  • Courts may also mandate therapy, classes or drug testing.

Judges consider convictions and corroborated allegations.

If you have this kind of history, you'll need an attorney to prove your parental fitness. The judge will want to see that you've gone a considerable amount of time without trouble.

Since the other parent can access police records and court documents, your lawyer may advise you to have your criminal record sealed. Sealed records still exist, but some of their materials, like fingerprints and mugshots, are returned to you or destroyed.

Your lawyer may want you to provide proof of sobriety, e.g., medical records or a statement from a rehabilitation program.

Witnesses can also be crucial to proving your changed behavior. A parole officer or sober coach, for example, may aid your case.

When one parent accuses the other of troubling behaviors, the judge orders an evaluation (by a mental health professional) or investigation (by an attorney for the child, Child Protective Services or law enforcement). Until the resulting report is complete, the case can't proceed to trial.

False accusations are taken seriously. Anyone ― a parent, witness, attorney, etc. ― who knowingly makes false claims of child abuse or neglect to a court can be charged with a misdemeanor or ordered to pay the accused person's legal costs. Beyond that, lying under oath is a felony that can come with jail time or fines. Parents discovered making false claims hurt their chances for custody and may have their court orders changed.

Special arrangements can be made for parents who have had violent relationships. Parents are able to meet separately with mediators, parenting coordinators and evaluators. Court orders, including parenting plans, may require parents to use monitored exchanges (details below) to ensure safety.

Supervised visitation

If a judge finds evidence that a child's health or safety is at risk, they may order supervised visitation. This means the child can only spend time with the noncustodial parent when a neutral third party is present to supervise. The court chooses who supervises the visits, and it specifies the time, length and location of the visits.

Situations that may call for supervised visitation include:

  • When the parent has a history of or faces an allegation of domestic violence, substance abuse, child abuse or neglect
  • When there's concern the parent may kidnap the child
  • When the parent has a mental illness
  • When the parent and child have had a long separation

In New York, every supervisor must be court-approved. The supervisor will be named on your court order. They can be a representative from a victim support agency or someone the parents agree on. When there are concerns about domestic violence, sexual abuse, child abuse or neglect, a professional supervisor is strongly advised.

Mental health professionals oversee therapeutic supervised visits. They work simultaneously to improve the relationship between parent and child.

Besides this difference, all supervisors have the same responsibilities. They must be present for the child's entire visit with the parent, pay close attention to the conversation and body language of both people, and interrupt or end the visit if they have concerns. They are always required to report suspected child abuse.

Monitored exchanges

An exchange is when one parent hands the child off to the other. The court will require that exchanges be monitored by a neutral third party if the well-being of the child or a parent is in question. Courts may also order that exchanges happen at a safe place like a police station, school or library.

Parental alienation

Parental alienation occurs when one parent attempts to distort their child's relationship with the other parent through lies and manipulation.

A custody evaluation ― complete with interviews, observation and psychological tests ― is usually necessary to confirm parental alienation. If identified, the evaluator often recommends therapy for the family members involved, as well as gradually-increasing parenting time or sole custody for the alienated parent.

Talk to an attorney if you need to prove or disprove parental alienation, as it is a serious and complex allegation.

Uncertain paternity

Proof of paternity allows a father to file for custody or visitation and gives him the responsibility of paying child support if he is the noncustodial parent.

Unmarried parents can sign an Acknowledgement of Paternity at the hospital after the child's birth or later at the local child support office or birth registrar.

If one party refuses to sign, the other can bring a case to family court by filing a paternity petition. After a hearing, the court will issue an order of filiation naming the child's biological father. Then a child support case automatically begins.

In a paternity case, the petitioning party is generally responsible for the cost of DNA or genetic marker testing. If they can't afford to pay, a public health officer conducts the test or social services cover the cost. In some cases, the judge orders the losing party to pay or both parties to split the cost.

Co-parenting counseling and parenting education

Judges can require parents to complete co-parenting counseling or parenting education classes as part of final custody orders. Parents can also elect to do these sessions.

New York's Parenting Education and Awareness Program teaches parents how divorce and separation affect children. Through the program, parents learn how to guard their children from parental disputes and prepare for familial changes.

For help finding a parenting educator or counselor in your area, refer to the program's list of approved providers or contact your family court.

Parenting coordinators can also counsel parents on how to communicate with one another and settle disputes to protect children from conflict.

Grandparent visitation or custody

In New York, grandparents have visitation rights. Before the court grants them a visitation order, grandparents must prove that it's necessary.

A grandparent may file for visitation if the child's parents are not allowing a grandparent-grandchild relationship. As with other child-related decisions, visitation must be in the child's best interest. Grandparent visitation orders cannot interfere with parental visitation schedules.

In extraordinary circumstances when grandparents believe parents are unfit, they may petition for custody.

To be awarded custody, grandparents should prove one or more of the following:

  • Parental unfitness
  • Child abuse or neglect
  • Surrender of parental rights
  • That the child has lived with the grandparents for an extended period

If you're a grandparent seeking visitation or custody, consult an attorney. The court process will be complex, especially if parents contest.

Foreign languages

Official court business is conducted in English. People who have limited English proficiency or a hearing impairment may request a free interpreter.

Interpreters must be employed by the state or listed on the state's registry. New York employs interpreters in over 100 languages.

Some counties have interpreters available in the courthouse daily. For example, New York City family courts have interpreters of Albanian, American Sign Language, Chinese (Cantonese and Mandarin), Creole, Russian and Spanish ready.

If you need an interpreter, notify the chief clerk's office as early as possible. Another option is to contact the Office of Language Access for a referral (or to file a complaint against an interpreter).

Addressing special situations in your parenting plan

Your parenting plan should be unique to your family and reflect your specific needs.

If a lawyer or mediator is writing your plan, it's important you share with them any circumstances the plan should address.

If you're writing your own plan, you have the flexibility to include what you want. But — the plan needs to follow a format the judge will understand, as well as use airtight language that leaves no room for interpretation.

The Custody X Change parenting plan template walks you through common provisions, while letting you enter as many custom provisions as you want. It's a sure way to get a plan that meets your family's needs AND court standards.

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