The Busy Parent’s Pocket Guide to Child Custody Problems
We know you are a super busy, hard working parent. But, if you are dealing with a child custody problem, this short 5 point guide will steer you in the right direction.
1.) Favoritism is a Myth
People sometimes feel or adhere that the courts favor mothers in determining issues of custody and access. The only way that this may be true is if that’s been the nature of your relationship in terms of how you and the other party have divided up the child care. If one party has taken on the major responsibilities of child care, that party may maintain that role after the divorce. Generally, the court is very interested in maintaining the children’s relationship with both parties. Despite the party’s hard feelings towards each other, the children have the right to love both parents and have involved relationships with both parents. The court is looking to divide the time between the parties if the parties can’t do it themselves in a way that the children have consistent, regular, and meaningful access with both parents.
- The courts are usually going to try and let the children have a relationship with both parents
- Additionally, the courts would like to have both parents help the children with important decisions
- If one of the parents causes a lot of stress for the children, then the courts may not push for joint custody
2.) We Can’t Agree on Custody
People are always very concerned about what the custodial arrangement is going to be for their children at the resolution of the divorce. When we talk about custody we’re really talking about in New York State who has the right to make major decisions for children. Those categories are educational decisions, medical decisions, religious decisions generally. Whether you’re going to have sole custody or joint custody is the determination of whether or not those major decisions are going to be made jointly or one party is going to have the right to make that decision. Most often people are able to agree to those terms.
If you’re unable to agree then you may need to run a hearing for the court to determine what’s going to be the custodial arrangement between you and the other party in terms of making decisions for the children. The standard for the court is to look at what’s going to be in the best interest of the children. Usually in that situation an attorney will be assigned to represent the children. The court is going to call an attorney for the child. You may also hear that attorney called a law guardian. They will have a say as to what they believe are the children’s position and how the custody should be resolved, and then your attorney and the other party’s attorney will also be advocating for your respective position in the matter. The court ultimately may make a decision based upon what the court determines to be in the best interest of the child.
- The court will always base this decision off what is in the best interests of the children
- If the parents can not decide then the court will be forced to make the decision.
- The court may call in a law guardian to see where the child is in the situation.
3.) Parenting Time
Parents are always very concerned about losing time with their children and having as much time as they can after the divorce process with their children. When determining how the children’s time is going to be shared, that may be done outside of court between your attorneys. You and the other party, with the assistance of your attorney, may be able to, by looking at the party’s respective work schedules and the children’s schedules, obtain a schedule which will offer both parents meaningful consistent access with the children. If the court’s going to be involved, an attorney is going to be assigned to represent the children in most cases. That attorney is going to be called an Attorney for the Child or sometimes called a Law Guardian and that attorney is going to help the parties and the parties’ attorneys reach a resolution as to how to share the time. The court is looking to what’s in the best interest of the children and to divide the time in a way that the children have consistency and adequate time with both of their parents.
- Parenting time can be decided outside of the court between the two parties
- If the two parties can’t decide then the court will get involved and decide for them
4.) No Access to the Children
It can be very upsetting when through the divorce or custody process it becomes difficult to obtain access to your children. People who come to me in that situation are very upset, very concerned about what their rights are and what the court might do to help them in that situation. If the divorce is ongoing or if the matter is resolved and you need to file a petition with the court, your attorney can put together papers which will seek court intervention to determine why the child is not seeing one of the parents and what needs to be done in order to fix that situation. The court always is looking to preserve party’s relationships with their parents, but they’re also looking to keep children safe. There’s always in that situation going to be an attorney assigned to represent the child. It’s called an Attorney for the Child. You may also hear that attorney called a Law Guardian. That attorney is going to help the court to determine what’s going on with the child, why there’s a breakdown in the relationship if it is between one parent and the child, or if the other parent is creating an alienation in the relationship. Sometimes social workers, or psychiatrists, psychologists can become involved to evaluate the parties or the child and to determine if there’s anything that needs to be done outside of the courts to help with the situation.
- Your attorney can file a petition with the court to force the spouse to let the children see you
- In that situation a law guardian will be appointed to represent your child and their best interests
5.) Moving From One Parent to the Other
The children do have an advocate through issues of custody and access, whether it be through a divorce or in family court. They’re going to receive an attorney assigned to represent them. The court calls that attorney the attorney for the child. You may also hear that attorney called the law guardian.
That attorney is going to be your child’s voice through the process. That attorney’s obligation is to advocate for the child’s stated position. With a very young child, that attorney may take the position that they are going to substitute their own judgment as to what might be in the best interest of the child. With an older child who is able to vocalize a position, the attorney’s going to advocate for that position. The court then is going to make a determination as to what’s in the best interest of the child. The court may agree with the position of the attorney for the child or not. That will be based upon a number of factors.
- The children will have an attorney appointed by the court to represent and defend their best interests
- The attorney will be the child’s voice. If the child is younger the attorney may use their own judgment
- With an older child the attorney will simply vocalize and advocate the child’s position
Are you or a loved one dealing with a child custody problem that just won’t stop? Let one of our dedicated attorneys take a stand, and help fix the problem.
This educational legal blogwas brought to you by Rebecca Talmud, an experienced Buffalo Child Custody Lawyer.