The issue of child custody is one of the most difficult and often most misunderstand areas of family law. Custody can be litigated in the Family Court or Supreme Court. It is not necessary to be divorced before litigating custody.
There are two major concepts to consider when discussing custody. There is residential custody, which is the parent with whom the child will reside most of the time. The child will usually be enrolled in the school district in the area that the residential parent resides. There is also the concept of decision making. Often, when we discuss “joint custody,” it refers to decision making authority. When there is joint custody, it means that both parents must confer and agree upon major decisions for the child such as medical and educational issues.
If a parent has sole custody, it usually means that they have both residential custody and all decision making authority for the child. The non-custodial parent would still have rights of access to the child, which should be specific days and times of the week and in writing.
Depending on the child’s age, they may wish to have a voice in the litigation. To accomplish this, the Court may appoint an Attorney for the Child, whose sole job is to represent the child’s wishes and needs to the Court. It is the hope of both the Court and the Attorney for the Child that the child is shielded from the impact of litigation. Children rarely, if ever, are asked to testify during a custody trial. If the Judge desires, they can conduct an in camera interview (also known as a Lincoln Hearing). During a Lincoln Hearing, the child is taken into the Judge’s Chambers, with the Attorney for the Child and stenographer and the Judge can talk to the child out of the presence of the child’s parents. The contents of the Lincoln Hearing are sealed.
Sometimes, the issue of custody arises because one parent is concerned that the child would be in danger if they are in the presence of other parent. This could be because of the use of drugs, alcohol, mental infirmities or physical limitations, etc. In these situations, the parent seeking custody may not be comfortable allowing the other parent to have unfettered access to the child. In this instance, they can ask for supervised or therapeutic visitation between the other parent and the child. This would mean that a third party would have to be present for the visitation between the parent and child.
If custody is disputed and the well being of one or both of the parties is an issue, a Court may order that both parties submit to a forensic evaluation before a mental health professional that would then report to the Court.
At the Law Office of Joshua Adam Kittenplan, we have litigated many custody cases. While custody cases are always difficult for a parent, we pride ourselves on guiding our clients through the process, providing important guidance and strong advocacy each step of the way.
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