New York Statute for Visitation
By Elizabeth Rayne, J.D.
The best interests of the child is paramount in determinations of child custody in New York. To that end, it is preferable that parents reach a voluntary agreement instead of going to court. However, if they cannot reach an agreement, the court will make a determination as to both legal and physical custody, with the nonresidential parent generally provided visitation rights as part of sole custody orders. Further, the court may be petitioned when issues with visitation arise and the parents cannot agree.
Child Custody Overview
In New York, custody matters affect children under the age of 18. Courts in the state encourage parents to reach their own parenting agreements concerning custody and visitation after divorce. When parents cannot come to an agreement, custody may be determined by voluntary mediation through the Family Court, or as part of a divorce action. In New York, as in all states, custody decisions are based on what is in the best interest of the child.
Types of Custody
The court may grant various types of custody arrangements in order to accommodate the best interests of the child. New York distinguishes between legal and physical custody. Legal custody refers to which parent makes major decisions for the child, such as issues surrounding education and health. Conversely, physical custody, also known as residential custody, refers to where the child lives. One parent may have sole custody, meaning one parent has sole legal and physical custody of the child, although the other parent may have visitation. The court may also award joint or shared custody, where the child lives and spends time with both parents and the parents are responsible for agreeing on major decisions for the child. However, one parent is typically designated as the primary residential parent while the other has visitation rights.
In most cases, the parent who does not have physical custody will be awarded "frequent and meaningful" visitation. Generally, visitation will not be awarded if it is not in the best interest of the child. However, even parents with histories of abuse may be awarded supervised visitation. Typical visitation schedules are every other weekend, or alternating holidays. Unless the noncustodial parent does not have a safe place to stay, the court will generally provide for overnight stays. If the parents live close to each other, mid-week visitation may be awarded.
If the other parent is denying visitation, you have the right to petition the court to modify the custody arrangement. Before visiting the courthouse, maintain records of every time visitation was denied. Visit the courthouse where the original order was made and ask the clerk about a custody order modification. The court may modify the order if circumstances have changed and it is found to be in the best interest of the child.
Other Visitation Issues
Other visitation issues arise in cases of nonpayment of child support, child neglect or abuse, and intervening grandparents or other family members. Where a parent has failed to pay child support, the other parent cannot deny visitation solely for this reason. The only time a parent can deny visitation to the other parent is when it would put the child at risk, such as when the other parent is under the influence of drugs. Further, a parent is never required to visit his child and may decide not do so. However, the court may alter visitation rights based on the refusal. If a motion is filed against a parent for abuse or neglect, the court may order supervised visitation, or discontinue visitation, based on the circumstances. In New York, grandparents and other family members may apply for visitation, but the court does not have to grant it for them. However, if the court finds that both parents are unfit to take care of the children, other family members may be awarded custody. Further, when a child has been placed in the care of social services, the court may award visitation rights to the parents or grandparents.
Elizabeth Rayne earned her J.D. from Penn State University and has been practicing law since 2009, advising clients on issues ranging from employment law to nonprofit management. For two years, she served as a contributing editor for the "Vermont Environmental Monitor."