In Family Court, a Court Attorney Referee is usually assigned to oversee child custody and visitation requests. If custody/visitation is sought as a part of a divorce proceeding in a New York Supreme Court, the matter will be determined by the assigned judge. A parent, grandparent, or individual with a significant connection or relationship with the subject child may petition the Family Court requesting the child be placed in his or her custody. The Referee or Judge will usually assign an Attorney for the Children (previously known as a “law guardian”). The Attorney for the Child will act as the voice on behalf of the children, who are deemed the AFC’s “client.” Ultimately, the court will formulate its decision concerning custody and visitation based upon what is referred to as “the best interest of the child” standard.
In doing so, the New York courts will look to several factors, such as: who is the child’s primary caretaker, the fitness of each parent, whether a child will be separated from his or her siblings, whether or not there have been allegations of abuse, drug and alcohol use, and whether a parent suffers from physical or mental illnesses which would prevent his or her ability to care for the child. Parents should be aware that there is a major difference between “residential custody” and “legal custody.”
It has become common knowledge for a parent contemplating a breakup or divorce to not leave the home. Most parents do not know why though. The reason, however, is because a parent who abandons the children with his or her ex-spouse, ex-girlfriend or ex-boyfriend, is implicitly consenting to the other parent having residential custody.
Understandably, custody and visitation cases are often contentious. Emotions are high, tempers flare and your patience will be put to the test. However, with proper counseling these scenarios are usually preventable. It is critical for parents to be mindful of the need to love their children more than they hate the other parent. It is imperative to hire skilled attorneys for custody and visitation battles who calmly lead their clients through a litigious battle. The attorneys at A. Cohen Law Firm firm are well versed with New York’s custody laws and rules, with years of trial and litigation experience.
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