Parents have the right to seek a court determination for custody and visitation of children.  Parents that were married when the child was born and parents that acknowledged paternity can bring an application without delay.  If the parents were not married when the child was born and no acknowledgement of paternity was executed, a paternity application must first be brought and an order of filiation entered prior to an application for custody and visitation.

When the court makes a determination of custody and visitation the court is required to make a determination based on the best interests of the child.  There is no gender preference in the law; the mother and the father have equal legal footing when applying for custody of a child.  The court will assess a variety of factors and make a determination of the best interests of the child based on the totality of the circumstances.  If the child is old enough, the court will consider the child’s wishes.

There are two spheres of custody; physical custody and legal custody.  Physical custody is just as the name implies, having the child physically live with you.  Legal custody is the right to make decisions regarding the child’s health, education and general welfare.

Physical custody is generally awarded to one parent with the other parent having a visitation schedule with the child.  In some instances the parents will have shared physical custody and the child will live part time with both parents.  The visitation schedule can be very specific or can be upon the agreement of the parties.  A common visitation schedule includes alternate weekends, alternate legal holidays, and half of the larger school breaks and a period of time in the summer.

Legal custody can be awarded to both parties equally, which is generally called joint custody, it can be joint custody with the parent having physical custody having final decision-making authority, or it can  be awarded solely to the parent having physical custody, which is called sole custody (and is rarely granted anymore).

If an extended family member is petitioning for custody, there is a preference granted to the natural mother and father, and the extended family member would have to show extraordinary circumstances to prevail and win custody.
Grandparents have the right to petition for a visitation schedule.  A typical schedule for grandparent’s visitation is one weekend day per month.
When the court is presented with an application for custody the court will generally appoint a law guardian.  A law guardian is an attorney that represents the child and advocates for the child before the court.  The law guardian will sometimes be asked to meet with his or her client and make a recommendation to the court.

The court sometimes orders that a forensic psychologist be appointed to conduct a forensic evaluation and make a recommendation to the court.  The forensic evaluation will consist of meetings with the parties and the child, both together and apart, a battery of tests and an overall evaluation as to each party’s fitness to be a custodial parent.  Many courts are shying away from forensic evaluations as they tend to take away the decision making role of the court relative to the determination of custody.

The court may order an I&R which is an investigation by the probation department.  The investigation will look into the background of the parties.

The court may also order a C.O.I., which is a court ordered investigation by Child Protective Services (CPS) or NYC Administration for children’s Services (ACS) relative to any possible issues of neglect or danger to the children in the home.

If the parties are not able to settle the matter based on the recommendations of the aw guardian or forensic evaluator, the court will hold a trial and make a determination as to the custody of the child.

The parties have the right to seek a change in custody or a visitation schedule at any time.  The moving party needs to show a change in circumstances that makes it in the best interests of the child for custody to be changed.

If you are contemplating bringing an application for custody or visitation, or if you have received a letter from an attorney or a summons to appear for a custody proceeding, you should consult with experienced matrimonial and family law attorneys without delay so you can determine and protect your legal rights.

The lawyers at the Law Offices of Paul A. Boronow, P.C. have been prosecuting and defending custody applications across Long Island and New York City in Nassau, Suffolk and Queens Counties for over twelve years with positive results.  We are aggressive and dedicated and remain a mere phone call away.


Contact us about your legal matter today!