The best interest of the child standard necessitates a close examination of specific facts in a particular case. For example, when ascertaining what is in the best interests of a child, the court examines the living situations of the parents. The court looks at which parent traditionally provided primary care for the child. The court also considers the physical, mental, and emotional health of the parents and the child.
As noted, the best interests of a child standard is applied in any type of custody proceeding in New York. This includes proceedings associated with establishing a custody order, enforcing a custody order, and altering or amending a custody order
Legal and Physical or Residential Custody
Custody under New York law comes in two forms. First, legal custody is the right or ability of a parent to make material life decisions on behalf of a minor child. These include decisions associated with matters like religion, healthcare, and education.
Physical or residential custody represents the right or ability of a parent to provide a residence for a minor child. The parent not designated as the primary residential custodian of a minor child is entitled to visitation or parenting time. Visitation of parenting time should be on a regular and reasonable basis.
Temporary Custody and Visitation Order
The first step in the child custody process is the establishment of legal and physical custody during the pendency of divorce proceedings. At the commencement of a divorce case, a number of motions for temporary orders are filed with the court. They can be filed by both parties to a divorce case. A key order is one establishing custody and parenting time or visitation during the course of divorce proceedings. Visitation rights are included in the temporary custody order
A temporary custody order remains in force until the final divorce decree is issued by the court. Oftentimes, the arrangement set forth in a temporary order carries forth into the final custody order included in a divorce decree.
Final Custody and Visitation Order
At the conclusion of a divorce proceeding, or paternity case, a final custody order is issued by the court. The content of a final custody order can be the result of negotiation between the parties and a settlement agreement. It can also be the result of a hearing before the court and the judge making decisions pertaining to the custody and visitation in a divorce case. No matter the route the development of a custody order takes, the determination must be in compliance with the previously discussed standard of what is in the best interests of a child. Again, visitation is part of the order.
If a parent fails to comply with a visitation order handed down by the court, a parent has the ability to seek judicial enforcement of a visitation order. This is accomplished by filing a motion with the court.
Typically, the court will hold a hearing on the accusations contained in the motion. The court will issue an order enforcing the existing custody arrangement. In addition, the court has the ability to sanction a parent for violating a visitation order.
Retain Legal Representation in a Visitation Matter
If you face a visitation issue, you need to be proactive in retaining the professional assistance of an experienced Staten Island child visitation lawyer. Counsel will schedule an initial consultation at no charge to you in most situations.