Family Court can be an intimidating environment for those who are not familiar with its rules and procedures. However having a basic understanding of the child custody process can make the experience less overwhelming. What follows is a very generalized view of a child custody case from beginning to end. When it comes to making decisions regarding child custody its crucial to seek guidance from a skilled Manhattan child custody lawyer. The courts decide according to the best interest of the child and an experienced lawyer can provide valuable advice and representation to ensure that the childs needs are met. How Does a Custody/Visitation Case Start? Either you or the childs other parent/guardian will file a petition for custody or visitation with the Family Court in the county where the child has lived for the past six consecutive months. In the petition the filing party will lay out the reasons why they think they should have custody of or visitation with the child. Forms for initiating a custody/visitation petition can be found here. Once filed the petition and a summons (a notice to appear in court on a certain date and time) must be personally served on the other party. Often the party who filed the petition will hire a process server to physically hand the papers to the other party; in other cases the filing party can have a person over the age of 18 personally serve the other party. In either case the process server or the person over the age of 18 will have to complete an affidavit of service to give to the filing party who will then present it to the court to prove the other party was served. Next comes the first Court Date also called a Return of Process date. On the first court date the filing party will appear and inform the Court of whether or not the opposing party was properly served this typically requires the serving party to produce a valid affidavit of service to submit to the court. If properly the opposing party is expected to appear at this Return of Process date. Assuming proper service was made and both parties appear the Court will then make sure each party knows why they are in court. Assuming they do the Court will next ask if the parties wish to have attorneys. Each party is given the option to either hire their own attorney see if they qualify for a free court-appointed attorney or represent themselves. Once the issue of attorneys has been addressed and absent any issue that requires immediate attention the case will be adjourned for a Conference several weeks out. At the initial conference the attorneys and parties will lay out any issues standing in the way of a settlement so the Court can better understand the specific case. These issues range far and wide from safety concerns about one parent general lack of overall involvement lack of information about a parents homes suitability for visitation or even an assertion that the child does not want visitation with a parent. In the event one parent raises a safety concern about another parent the Court will often employ one or both of the following measures: supervised visitation and a home study. If there is an assertion made about the childs wishes and the child is of an age where they can express their opinions regarding custody and visitation (typically 3 years old) the Court will assign an Attorney for the Child (AFC) to represent the child. The AFC is duty-bound to advocate for the childs position even if the childs position is that he/she wants to live with one parent over the other because that parent allows them to play video games and eat ice cream for dinner. The AFC cannot substitute their own judgment simply because they think the childs decision is driven by caprice or immaturity. The only time the AFC can substitute their own judgment for that of the child is if following the childs wishes is likely to result in a substantial risk of imminent serious harm to the child or if the AFC is convinced the child lacks the capacity for knowing voluntary and considered judgment. At the conclusion of the initial Conference the Court may issue orders related to the above as well as temporary orders regarding visitation phone contact location of child exchange or any other logistical orders that need to be made. The parties will then be responsible for complying with those orders until the next court date usually a Settlement Conference several weeks after the initial Conference. In between the initial Conference and the Settlement Conference the parties will discuss the remaining issues regarding custody and visitation with their attorneys. During these conversations it will likely become clear whether the case can be settled for an order on the consent of the parties (a settlement agreement) or if the case will proceed to trial. The attorneys will also conduct negotiations between themselves in an effort to finalize a resolution or prepare for trial by exchanging evidence. Attorneys may ask their clients for evidence to support their case and it is very helpful when clients have this evidence organized in advance. At a Settlement Conference the Court will listen to any outstanding issues that are standing in the way of settlement. If the issues seem like they can be resolved in a short matter of time the Court will likely give an additional conference date in the hopes a settlement can be reached by then. If the outstanding issues are too large or the parties are too far apart in terms of the settlement the Court will set the case for Trial. The vast majority of cases settle as parties usually prefer to come to an agreement about custody and visitation of their children rather than leave the decision up to a judge at trial. At Trial the Court will listen to the evidence presented by both parties. This can be the parties own testimony testimony from other witnesses as well as documentary evidence or recordings. After all the evidence is heard the Court will consider the facts under the best interests of the child analysis and render a written decision that specifies custody and visitation rights for the parties. This decision typically constitutes the conclusion of the case unless there are grounds for an appeal. To learn more about what the Court will consider under the best interests of the child analysis see our prior post linked here. Child custody proceeding lawyer in Manhattan How Does the Court Decide What is Best for the Child? A full and thorough evidentiary hearing is required in order for the Court to make a determination about what is best in the childs best interests. New York Courts believe that parents have fundamental rights to custody of their children but that neither parent has the absolute right to custody. In making its decision the Court will consider the welfare and best interests of the children first. In a custody battle where one parents interest conflicts with the other the interests of the children will be paramount. After a hearing a New York Family Court Judge/Referee will make a Custody decision. The goal is to reach a fair and lasting custody determination to prevent children from being moved back and forth between divorcing parents. A Custody evidentiary hearing will assess the credibility of witnesses and reveal the temperament and character of the parents. In determining the best interests of the child the Court will take into account the following: Age of the Parents Alcohol and drug abuse Accessibility of parents Physical and mental disability Domestic Violence Existing informal custody arrangements Written custody agreements The financial situation of the parents Child abuse and neglect Home Environment Lawyer for Child Mental and emotional stability Parents behavior in court Preferences of the Child Religion Siblings Willingness to foster the childs relationship with the other parent Child custody cases are not governed by absolutes. All Custody decisions are made at the Courts discretion after the Court has weighed all relevant information in order to make an informed decision as to the best interests of the child. Child Custody Relocation Rules in NYC If you have custody of your child/children and you wish to relocate outside of New York State it is possible to request consent from the other parent of the child or to request a court order. New Yorks courts are committed to ensuring that children maintain close relationships with their parents. No matter whether they have joint or full custody both parents have the right to see their child. But each parent can live their lives as they wish. If the need to relocate out of state comes up the parents may be able to seek to modify their child custody agreement. If parents do relocate they will need to ask permission from either the opposing parent or the court. As with all matters related to children of divorce it comes down the what the court considers to be in the childs best interest. The court will only allow the relocation of a childs house away from one parent if it is not a major disruption to the childs daily life and if there are clear benefits for the child living with the parent. Relocating a child/children will have a major impact on both the child and the noncustodial parent. This can also affect extended family and friends as well as their school and community. New York State Courts examine these cases carefully because of the potential impact that relocation could have on children. What Happens At The First Custody Hearing? The first custody hearing also known as the Return of Process date is an important step in the child custody process. It occurs after a custody or visitation petition has been filed with the Family Court. During this hearing the filing party will inform the court if the opposing party has been properly served and the opposing party is expected to attend. Both parties have the option to hire an attorney determine if they qualify for a free court-appointed attorney or represent themselves. The initial conference allows the parties and their attorneys to discuss any issues that may prevent a settlement from being reached. If there are concerns about the childs safety or assertions made regarding the childs wishes the court may order supervised visitation a home study or appoint an Attorney for the Child (AFC) to represent the childs interests. Following this a Settlement Conference is held to discuss any remaining issues that could prevent a settlement. If these issues seem resolvable another conference date is scheduled. If not the case is set for trial. During the trial both parties present evidence and the court considers the facts using the best interests of the child analysis to make a written decision that outlines custody and visitation rights. Custody cases can be complex and it is often beneficial to consult with an experienced child custody lawyer to help protect the best interests of the child involved. Getting the Help of a Skilled Manhattan Child Custody Lawyer Child custody cases are usually complicated. Especially in difficult divorces both spouses may have a hard time coming to an agreement about where the child should live and what the custody arrangement should be. Consulting with an experienced child custody lawyer in Manhattan may be helpful in making sure that the childs best interests are protected. At the Law Office of Ryan Besinque divorce lawyer Ryan Besinque has experience dealing with difficult child custody arrangements. To schedule a consultation contact us today at (929) 251-4477. via The Law Office of Ryan Besinque PC https://www.besinquelaw.com/what-to-expect-in-a-child-custody-proceeding-anatomy-of-a-custody-case/