Top Questions to Ask: Child Custody Case

Understanding the Child Custody Process

What’s the Difference Between Legal and Physical Custody?

Legal custody refers to the ability to make important decisions about a child’s life, such as education and healthcare. On the other hand, physical custody refers to where the child lives, and parents may share physical custody by splitting time with the child. Understanding the difference between legal and physical custody is essential for parents navigating the child custody process. In general, courts consider various factors, including the child’s best interest, when making custody decisions.

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How Do Courts Determine Who Gets Custody?

Courts evaluate several factors when determining custody, including the home environment each parent offers, the distance between each parent’s homes, and each parent’s ability to serve as a caretaker. The court also considers whether the parents can work together, each parent’s financial circumstances, and the child’s preference (if the child is at least 12 years old). Ultimately, the goal of family law courts is to do what is best for the child, and courts will try to award equal time to both parents unless particular circumstances, such as the presence of child abuse, are involved that complicate matters further.

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What Do Courts Mean by the “Best Interests of the Child”?

The "best interests of the child" refers to what is considered the most ideal situation possible for the child. Courts consider various factors, including the child’s relationships with each parent, the child’s education, and the child’s overall well-being, when assessing best interests. It is the primary concern of the court, so all decisions will be made accordingly to ensure needs are being met. Parents should always prioritize their child’s interests when navigating the custody process.

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Assessing Your Situation and Relationship with the Child

What’s Your Current Financial Status and How Will It Affect Child Support?

The court will consider your financial situation, including income, debt, and other financial obligations when determining your child support obligations. Child support payments are designed to ensure the child’s basic needs are met. The amount of child support can vary depending on the state and the specific circumstances. Therefore, parents should be prepared to provide detailed financial information about their expenses and income to the court.

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What Type of Relationship Do You Have with the Children?

The court will consider the relationship between you and your child, including the quality of the relationship and the level of involvement you have thus far in their life. Parents should be prepared to provide evidence of their relationship with the child, such as parent-teacher conferences, extracurricular activities, or amount of time spent. Ultimately, as stated, the court will consider the child’s best interests when evaluating the relationship between the parents and the child.

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How Do You and the Other Parent Communicate with Each Other?

The court will consider the level of communication and cooperation between the parents when determining custody. Parents should be prepared to provide evidence of their communication with the parent, such as emails and text messages, that may help in creating a comprehensive profile of the current dynamics. The court will also consider the parents’ ability to work together and make favorable decisions for the child. Therefore, parents should prioritize effective communication with the parent in order to increase the chances of favorable outcomes.

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Evaluating Your Options for a Child Custody Arrangement

What Are the Different Types of Custody Arrangements?

There are several types of custody arrangements, including joint custody, sole custody, and shared custody. Joint custody is both parents having equal rights and responsibilities regarding the child's circumstances, whereas sole custody refers to one parent having primary custody of the child. Shared custody refers to both parents sharing physical custody of the child.

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Modifying and Enforcing Custody Arrangements

Can Modification Requests be Dismissed without a Hearing?

A request for modification in a child custody case can be dismissed without a hearing if there is no evidence of a significant change in circumstances. Courts generally prefer not to modify child custody matters without a valid reason, as it can disrupt a child’s life. For a child custody modification case to move forward, a proper, substantial change of circumstances must be alleged. Therefore, parents should be prepared to provide evidence of a significant change in circumstances.

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What Is a Parent Coordinator and How Can They Help?

A parent coordinator is a professional who offers guidance to parties in a child custody case. They help parents who are interested in pursuing joint legal custody or resolving parenting time issues. Parent coordinators focus on putting children first and providing dispute-resolution options for high-conflict cases. Parents should consider working with a parent coordinator to resolve disputes more effectively.

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How Can You Enforce a Custody Order If the Other Parent Isn’t Cooperating?

If the other parent is not cooperating with a custody order, you can ask the court to take action on your behalf. The court has the power to garnish the other parent’s wages or even impose a jail sentence if they refuse to comply. Parents should prioritize enforcing the custody order to ensure the child’s best interests are protected. Parents should also be prepared to provide evidence of the other parent’s non-compliance.

What Is an “In Camera” Interview and How Does It Work?

An In Camera interview is a private conversation between a child and the judge in a child custody case. The conversation takes place in the judge’s chambers, with no other people present except for the child’s attorney and the judge. The purpose of the interview is to allow the child to express their concerns and preferences without fear of repercussions. In Camera interviews are used to gather information about the child’s best interests.

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Special Considerations in a Child Custody Case

What if I Believe My Spouse Is Unfit to Have Custody of Our Children?

Every state has its own rules regarding what makes a parent unfit. Substance abuse, physical abuse, mental illness, or neglect are generally accepted criteria for being unfit. In New York, a parent is considered unfit for custody if they are unable to care for the child responsibly and otherwise put their child's health, safety, education, or welfare in danger. Consulting with an attorney is highly advisable if you believe your spouse is unfit. The burden of proof rests on you to demonstrate that your spouse is unsuitable.

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Can I Move to Another State with My Child?

A temporary custody order will be placed once you have filed for divorce. This order will determine whether you can move out of state with your child. Most states require some form of written notice or consent from the other parent. Relocating with a child without proper consent can be considered parental kidnapping.

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What Is a Guardian Ad Litem and How Can They Help?

A guardian ad litem is a person appointed by the court to act as an independent investigator. The guardian ad litem will talk to the child, parents, family members, friends, teachers, counselors, and social workers in order to put together a written recommendation for the living situation they believe is in the child’s best interests. While the judge does not have to follow the guardian ad litem’s recommendation, they will take it very seriously.

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Long-Term Implications of a Child Custody Case

When Can Children Choose Which Parent They Want to Live With?

Children can make decisions about custody and visitation when they are 18. However, different states have different requirements for when they will allow a child to have a say in where they will live. The court does not have to follow the child’s wishes if they do not believe it is in the best interests of the child. Although children’s opinions are considered in custody decisions, they are not always followed if they contradict safeguards for their own safety.

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What Is a Parenting Plan and How Can It Help?

A parenting plan outlines the rights and duties of a parent regarding their child. Some rights and responsibilities include primary residence, making decisions about healthcare, deciding the child’s education, and managing child support. Every case involving children will need a parenting plan. Parents should consult with a lawyer to create a parenting plan that prioritizes and protects the rights of the child.

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If a Parent Loses Custody, Can It Be Regained?

A parent can regain custody even after previously losing custody rights. The parent that lost custody must prove to the court that they are improving in ways that impeded their ability to maintain custody before. There must be compelling evidence that it is in the children’s best interests for a parent’s custody rights to be restored. Regaining custody requires a significant change in circumstances or correction of the problems that led to the loss of care.

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Preparing for a Child Custody Case

What Are the Most Important Documents to Gather for a Child Custody Case?

Parents should gather documents related to their financial situation, including income, debt, and other financial obligations. They should also gather documents related to their relationship with the child. Most importantly, parents should prioritize gathering evidence that supports their case.

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How Can You Prepare for a Child Custody Hearing?

Parents should be prepared to provide evidence and testimony in court. It is essential to remain respectful and professional in court. Parents should also be prepared to answer questions from the judge and the other parent’s attorney. Above all, parents should prioritize presenting their case in a clear and concise manner.

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What Are the Most Common Mistakes to Avoid in a Child Custody Case?

Parents should avoid speaking negatively about the other parent in front of the child. They should prioritize effective communication with the other parent and avoid making false accusations or providing false evidence.

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Representation in a Child Custody Case

Do I Need a Child Custody Lawyer?

A child custody lawyer can help you navigate the custody process and ensure your rights are protected. A lawyer can help you present your case in court and advocate for your child’s best interests. If you are eligible for no- or low-cost representation, you may want to consider seeking legal aid. Therefore, parents should consider hiring a child custody lawyer to ensure the best possible outcome.

What Is Mediation and How Can It Help Resolve Disputes?

Mediation is a nonbinding process involving a neutral third party who helps a couple work out the details of their divorce. Mediation can be a faster and cheaper alternative to going to court. A qualified mediator can help divorcing couples come to a decision regarding property division, child custody, child support, and spousal support. Parents should consider mediation as an option for resolving child custody disputes.

Here at Hannon De Palma, LLC, we believe in focusing on what truly matters -- protecting your rights, using our expertise to create successful outcomes for the entire family, and focusing on creating a future where everyone can thrive. Practicing across Westchester County, Manhattan, Long Island, and Boston, the Hannon De Palma team has decades of experience representing clients in custody and divorce cases.

Call our office at (914) 444-1900 or fill out a simple, free online consultation form to begin your next chapter.

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