New York Custody Cases

New York custody attorneys like Daniel Szalkiewicz and Cali Madia play a pivotal role in your family’s life.  Experienced lawyers can help you spend as much time as possible with your children while allowing you to be in control of their major life decisions.  Custody is the most important determination a court can make and we understand and will fight hard for your parental rights every step of the way.

What is Custody?

Custody outlines parents’ responsibilities for caring for and living with a child.  There are two aspects of custody in New York: legal custody and physical custody.  A parent can be awarded sole legal and physical custody, or both parents can be awarded joint physical and legal custody.  In rare cases, one parent may be awarded sole physical custody and another sole legal custody.  Prior to starting your custody case, it is important to understand all of the factors that go into determining which parent will be awarded custody.

Physical and Legal Custody

New York Courts award physical and legal custody.  A parent who has sole legal custody gets to make the important decisions in a child’s life, such as religious upbringing, schooling, medical care, and where the child resides.

A parent who has physical custody, also known as residential custody, is responsible for the actual physical care and supervision of a child. Physical custody is not only important to determining your child’s school district, but also plays an important role in child support determinations.  There are also situations in which parents agree to a nesting agreement, allowing the child to remain in one house while each parent comes and goes, as set forth in the custody agreement. There are many different ways to effectively co-parent, and there’s no one-size-fits-all approach that will work for every family. Our firm will help you negotiate an arrangement that best fits your family’s unique needs.

Sole and Joint Custody

When determining physical and legal custody, the court can award either sole custody or joint custody.  Sole legal custody allows a parent to make major decisions affecting the child, like health care, education, and religion without the interference of the other parent.  While the other parent still has input in the decision, when the parents are unable to agree, the parent with sole custody can make the final decision alone.  

Sole physical custody, also known as primary physical custody or primary residential custody, is when one parent has the child for more than 50% of the time while the noncustodial parent is awarded visitation.

 Joint legal custody is when both parents have a say in the decisions of the child.  In New York, joint custody is only given by a court where the parents have shown they are capable of cooperating in making decisions on matters relating to the care and welfare of children. This is not to say that New York courts do not gravitate toward the active involvement of both parents. Indeed, in New York, it is not uncommon for each parent to be awarded zones of responsibility, for instance, granting one parent the ability to make decisions on education and the other parent the ability to make decisions on religion and healthcare. New York courts view the meaningful involvement of both parties, albeit in separate spheres, as a healthy middle ground which serves the best interest of the child or children.

 Similarly, joint physical custody, also known as shared physical custody, is awarded where there is no concern regarding the living arrangements or fitness of either parent and where there is a sound, substantial basis for a finding that a shared custody arrangement is in the best interest of the child.

Custody is Not Only About Decision-Making and Residency

As all parents know, even the best laid plans can go awry. Our firm recognizes that situations arise beyond what was envisioned in your original agreement.  Court involvement is often needed when:

• A party needs to move from one state to another for work;

• Enforcing and changing out of state custody orders;

• Modifying a previous order to provide one parent more time or take away time from the parent;

• Making sure both parents are following a previous agreement and enforcing the terms if needed;

• Changing your child’s school or camp; or

• Protecting the rights of same-sex couples and non-biological parents.

 Hiring an experienced attorney is important in all legal matters, but especially ones involving matters of custody.

Custody Cannot be Decided on the Papers

Unlike other areas of the law, a court should not decide custody cases solely on the papers a lawyer or party submits.  Each party has the right to a full and fair hearing where all of the evidence is presented to the court.  

At the trial, each party can testify and have their witnesses testify.  The testimony and court proceeding must focus on the best interest of the child.

New York Custody Cases are Decided on the Best Interest of the Child

Judges in New York determine which parent should receive legal and residential custody.  This is often a very difficult task.  The judge does not know your story and may have only met you a handful of times.  Custody determinations take place in the courtroom, with the attorneys asking questions of those on the stand and the judge occasionally speaking with the mother or father.  The law has created key factors that the court should think about when awarding child custody to the parent.  Those factors are:

• The quality of the home environment;

• The parental guidance the custodial parent provides for the child;

• The ability of each parent to provide for the child's emotional and intellectual development;

• The financial status and ability of each parent to provide for the child;

• The relative fitness of the respective parents;

• The effect an award of custody to one parent might have on the child's relationship with the other parent;

• The child’s preference.

Each of these factors is supposed to help the judge decide what is in the best interest of the child. 

Custody Can be Determined in Both Family Court and Supreme Court

Parents have two venues where they can fight for custody of their children: New York Supreme Court or New York City Family Court.  In order to bring a case in Supreme Court, the mother and father need to be married.  In Family Court, any parent can file a petition regardless of whether they were legally married.

Both Family Court and Supreme Court have their advantages and disadvantages.  Custody cases in Family Court can move faster and can be less costly.  If you need to resolve child support and custody matters in Family Court, each case is heard before a different judge. 

 In Supreme Court, the same judge hears both your custody case and support case.  Custody matters are normally decided as part of a divorce.

If There is an Urgent Custody Issue, a Parent Can Obtain a Temporary Order of Custody

Temporary custody orders are available in emergency situations.  During a divorce, a parent can file a pendente lite motion for temporary custody.  This will decide which parent has custodial rights during the length of the divorce proceeding. 

In Family Court, a motion for temporary custody can be filed to allow a parent to make important decisions regarding their child prior to the completion of the matter.

A parent does not need to wait until the conclusion of the case and a judge’s final order on custody before they can start making decisions concerning their child’s well-being. Immediate relief is always available.

Other Players Involved in Custody Cases

We understand custody is a deeply personal matter between the parents.  Once a custody case is filed, there are other players involved in your life that play an integral role in the final decision of custody.

The judge and law clerk will oversee your case.  If you are unable to resolve the action with your child or children’s other parent, the New York judge will ultimately make a decision for you.

An attorney for the child, sometimes called a guardian, is appointed by the court to represent your child’s best interests.  The attorney is either paid for by the parties or paid for by the court.  The attorney’s job is to express your child’s desires. In certain limited situations where a child is very young or has cognitive impairments an attorney for the child may substitute their own judgment. In most situations, however, attorneys for the child are confined to representing the child’s legal interests and echoing the child’s wishes.

A forensic psychologist is also appointed by the court.  The forensic psychologist meets with the parents, the children, and witnesses suggested by each parent and writes a report for the court.  The forensic psychologist will also testify at trial. Generally speaking the appointment of a forensic psychologist is one of last resort as they can be expensive, time-consuming, and involve yet another individual in the custody determination. Ultimately, the forensic psychologist’s report contains detailed findings and recommendations on which a judge can rely in making their decision.

A parental coordinator is sometimes appointed to help the parties when they are at an impasse.  The parental coordinator plays the role of a mediator and makes recommendations to the parents.

Mediators can help resolve the custody case.  A mediator serves more of a judicial role but is not a judge. Mediators do not represent the father or mother and can be an effective tool in determining parents’ major issues and grievances.  The mediator’s role is to help the parents come to an agreement.

Custody is Never Final and Can Always be Modified

A court may make a decision or the parties may agree to a custody agreement, but life is fluid. What works for a family or child one day may not always work in the future.  The law recognizes the need to modify and change custody agreements, and a party can file a modification by showing a substantial change in circumstances.

New York Respects Out of State Custody Agreements

If the parents agreed to a custody arrangement in another country or state, New York will adhere to the terms of the agreement.  A parent can file a petition in Family Court or motion in Supreme Court to try to modify the custody agreement.  A parent does not have the ability to reargue or relitigate custody simply because the initial order did not come from New York but, conversely, a court is not prevented from making subsequent decisions simply because the matter was initially tried elsewhere.

Attorney Fees in Custody Cases

A wealthy spouse or parent does not have the ability to financially bankrupt the other party in order to gain a litigational advantage.  In both Supreme Court and Family Court custody cases, the court can award attorney fees to a party based on the financial circumstances of the parties and the particularities of the case.  In divorce and custody cases, there is a rebuttable presumption that attorney fees must be paid by the moneyed spouse.

Our Firm Uses Technology in Custody Cases to Help Litigate Your Matter

Daniel Szalkiewicz and Cali Madia are litigators, filing hundreds of cases in all areas of law. Our firm has experience suing tech companies such as Google, Facebook, and Instagram for information, including location data and IP addresses.  We use this knowledge in our custody cases to help give our clients an edge when the internet is involved.  We have used technology to identify where a parent spends their money and time, to obtain financial records, and to track down harassing websites and reviews created by parents.

Visitation and Custody

Life is difficult and there may be situations where custody is not an option for a parent. Whether they are required to travel for work, in the military, or have another family, we understand that physical and legal custody may not be an available option.  The unavailability of custody does not mean you are unable to see your child.  A parent is still entitled to a visitation schedule which will allow them to see their child on their time.  Visitation keeps you involved in your child’s life even when you do not have custody.

Daniel Szalkiewicz & Associates has years of litigating custody matters in both Supreme Court and Family Court, representing parents seeking custody of their children. Contact us with your custody concerns.