However, the courts in New York do not tolerate such abuse of parental rights, and usually work with both parents to expediently work out a visitation schedule, even for the duration of the divorce proceedings, which may take months or over a year. The New York Supreme Court and Family Court will always act in the best interests of the children, and sometimes even a special attorney for the child is assigned in court. Unless there is a serious threat to the safety of the child, such as in cases of documented abuse of the children or alcohol or drug abuse by the parent, the parent will always be able to see his or her children. Sometimes the visitations have to be in a supervised setting at first, or with a therapist. It does not matter that the spouses are having difficulties with each other and are getting divorced. The paramount concepts universally accepted in the New York courts are that both parents should have a prominent role in their children’s lives and the spouses should never disparage each other in front of the children or try to alienate the other parent.
There are two types of child custody. Physical or residential custody determines where a child lives, which is usually with the custodial parent who makes the day-to-day decisions about the child’s welfare. Legal custody is the right to make significant decisions for the child such as education, religious upbringing, and non-emergency medical care. Needless to say, where the child goes to school, religious school, and summer camp have significant financial implications, so it is only fair that these decisions should be made by both parents, even after they divorce. Joint decision making is called “joint legal custody.” In the end of any divorce proceeding with minor children, there should either be a So Ordered settlement agreement between the parties or a court order concerning custody of the children. Custody agreements and court orders may be modified sometimes, based on a change in circumstances: for example, changes in income or living arrangements of the parents, relocation or remarriage of the custodial parent, availability of more time to spend with the children, the children’s preferences (if they are old enough), and a number of other factors.
Whenever physical or residential custody is disputed, or both parents want the children to live with them, the resulting fight may be damaging to the children, especially if they are young. Additional disputes arise if paternity is an issue, such as when the parents are not married or the child’s father is not listed on the Birth Certificate. It is best for the children to resolve any disputes over custody quickly and without the children’s involvement if possible, but, at a certain age, a court might ask a child about his or her preference and take that opinion into consideration. If an amicable resolution is not at all possible, we guide our clients through difficult custody battles, including hearings with testimony of witnesses and medical experts who will testify as to what is in the best interests of the children.
If it is possible to resolve the custody issues through negotiations and settlement, we look for creative solutions to the parties’ frequent unwillingness to work with each other. Both parties tend to be understandably emotional about custody and visitation issues because it is their children, but resolving these disputes through settlement spares the children having to go through the painful process while their parents fight it out in court. For skilled negotiators, it is possible to find an acceptable compromise between the parents, sometimes by thinking outside the box. That is why the Law Offices of Leo Mikityanskiy carefully evaluates each client’s needs regarding custody and visitations and incorporates that knowledge into negotiations or litigation to defend the client’s rights.
Aside from custody issues, communications with the children and visitations, including on birthdays, holidays and vacations, are major areas of disputes for most divorcing parents. It is imperative that all of these issues be addressed in great detail in a settlement agreement, which should be So Ordered by the court. The agreement should be specific with respect to when and how the non-custodial parent can visit the children, where the parent can take them, including travel or vacations, and for what period of time the visitations can last. If the parents cannot resolve these issues through negotiation and settlement, these issue must be addressed through hearings in court and a court order. If these issues are not appropriately addressed during the divorce, one of the parents may end up bringing another petition in court after the divorce is finished because the parent is not receiving access to the children.
The Law Offices of Leo Mikityanskiy represents clients in matrimonial matters concerning parental rights, child custody and visitation in Brooklyn Courts in New York. Contact experienced New York Family Law attorney Leonid Mikityanskiy at our Brooklyn, NY office at (718) 256-3210 to discuss your parental rights, child custody and visitation issues today.
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