Child Custody Lawyers in NYC
The Diefenbach firm is comprised of child custody lawyers in NYC both in house and Of Counsel who are well known and highly regarded by both colleagues and clients alike. A custody dispute often is a nerve-racking experience. Parents come to us terrified at the thought of losing time with their child, or as is customary after a divorce in New York, of having one parent see the child every other weekend. Our mission is to have you obtain primary and residential custody of your child. This is a death knell for the other parent to then choose to obtain a court order to change custody and seek, for example, to relocate to another state, which often destroys the parent-child bond. The advice of our attorneys is crucial in helping you secure child custody in New York during the divorce process. The loser in a divorce battle pays child support usually until the child is 21, as the Divorce Judgment must allocate who is the custodial parent.
Factors Determining Child Custody
The following is a checklist of factors divorce and custody courts look at in determining which parent should have primary residential custody of a child:
• Parent who has been the primary caretaker
• Spousal Abuse
• Domestic violence and who caused it
• Mental health
• Need for stability and continuity in the child's life
• Child Abuse
• Parent's work schedule
• Need for supervised visitation
• Willingness of one parent to foster the child's relationship with the other parent
• Criminal conduct of parent
• Child's preference to be with one parent
• Physical health of each parent
• Previous criminal convictions
• Parental guidance that fosters intellectual and emotional maturity in the child
• Physical location and locale of where each parent intends to reside with the child
• Intent by one party to relocate to another state
• Violations of any Court orders during the custody battle
• Intent to relocate to another country (make sure that country is a signatory to the Hague Convention on Civil Aspects of International Child Abduction)
• Forensic report by psychologist or psychiatrist
• Expert testimony by psychiatrist or psychologist
Do's and Don'ts in Child Custody Disputes
New York laws on child custody are perhaps more open to misuse and confusion than any other part of a divorce. Perhaps a close second would be valuation and subsequent equitable distribution of professional licenses and practices.
The different varieties of custody and visitation, within the parameter imposed only by ones imagination, can be as varied as the lawyers who devise them. But what those varieties are, you will not know if you choose an attorney who is not expert in crafting these types of agreements, and the time to have fought for significant parenting time or child custody (read: during the early stages of a divorce proceeding) has long passed. You are not going to walk into a courtroom 5 years after being a dead-beat dad and think the judge is going to flip custody on your ex-spouse. The time to fight for custody is during the divorce.
There is sole legal custody, joint legal custody, split residential custody, joint physical custody and/or joint residential custody, and as if that is not confusing enough, there is one animal in the custody jungle that has no name: in some instances the children stay in the house after the divorce, the house is not sold, and neither parent gets the house: the parents flip living in the house weekly or bi-weekly until the children start college. It's a win-win for the children. In one case, Mr. Diefenbach was instrumental in devising a parenting plan, which was not only approved but lauded by the judge presiding, of a 6 month husband/6 month wife rotation of custody, which the judge indicated she had never seen before and considered it a creative solution.
There is nothing in the New York child custody laws except what is in the best interests of children which prevents the lawyers to fashion a custody agreement for the children after the divorce detailing what the father's and mother's rights and obligations should be in raising them.
Joint Custody and Sole Custody in the New York Courts
There is a trend toward joint custody, structured by the attorneys' negotiations for a joint parenting plan, which generally is approved by New York's divorce judges, so long as the mother and father can act in a civilized and cordial manner toward each other. The Court may appoint an attorney for the child, to represent the child in any child custody litigation. Once the custody issue is determined, interference by one parent in the relationship the child has with the other parent can be grounds for modifying custody. For example, Parental Alienation Syndrome is recognized by the divorce courts of New York as being detrimental to the child; interference by one parent with the parenting or visitation of the other parent; or removal of the child to another state or country.
Child custody disputes are unfortunately both emotionally and psychologically taxing, and are often highly litigated between two confrontational and non-compromising parents. However, at times a custody trial is inevitable, as in for example, where one party to a divorce has every intention of relocating from New York to another state. The farther the state from NY the more litigated it is, because it significantly impacts on the other parent's time with the child after the divorce. You owe it to your children to have on your side an attorney who has the genuine compassion and the significant experience in the negotiation and litigation of child custody cases.
Who you choose as your attorney can, and often does, mean the difference between a healthy future with your children, where you are not shut out of their life by way of a spouse's relocation to another state or by way of parental alienation, or a future fraught with conflict with your ex.
We see parents come to us for help on custody matters years after a divorce because the first lawyer who handled the divorce did not properly address the myriad of issues that we deal with every day. In the end, going back to court years after a divorce costs you more in legal fees. And the die is cast on custody by then. As judges do not allow children to be treated as ping-pong balls, they rarely award physical custody back and forth between parents. And New York judges, despite some Academy Award-winning oratory by some of New York's best divorce lawyers, do not easily transfer custody lightly after a divorce, though it is possible, based on the circumstances of each case.
Our guarantee to you is that if you want to fight for the right to be an involved parent, we will go through every legal channel to get you the future you believe you deserve.
Emergency Orders to Show Cause in NY Divorce Cases
Our firm routinely prepares Orders to Show Cause in NY custody divorce cases. Generally, an Order to Show Cause is filed when you need relief immediately. In Manhattan divorce cases, Orders to Show Cause are filed by the lawyers for custody, as well as the following other types of emergency relief:
• Temporary Restraining Order
• Restraint on Bank Account
• Exclusive Occupancy of Residence
• Immediate Payment of Child Support, Bills of Mortgage
• Maintenance
• Immediate Pendente Lite Residential Custody
• Other Types of Relief
When you file an Emergency Order to Show Cause, you will also need to include a sworn statement from the party seeking the relief, as well as any other corroborating affidavits from eyewitnesses and character witnesses, as well as any copies of documents you wish the judge to review in deciding your Order to Show Cause.
If the judge is convinced by your Affidavit, he or she can grant the relief without hearing (ex parte), such as for example a temporary order of protection, or a temporary restraining notice, without an opportunity for your spouse to oppose it, except on the return date of the Order to Show Cause. If the temporary relief is granted, your attorney will need to serve your spouse with the Order to Show Cause, at which time your spouse will go back to the judge to argue that the relief should not be granted.
This manner of litigation is fast moving, and to get results, requires significant resources, staff and infrastructure. It is not unusual for the return date to be the day after service of the papers upon the opposing party. In cases of alleged child abuse by one spouse, the court may order a COI (Court Ordered Investigation) by ACS which would be produced by ACS on the return date of the Order to Show Cause for the judge to analyze the merit of any allegations.
INTERPLAY BETWEEN DOMESTIC VIOLENCE AND CHILD CUSTODY AWARDS
Intuitively we might think that if one parent is violent in a domestic setting, either towards the other parent or towards the child, then child custody would always be awarded to the non-violent parent. Unfortunately, this does not always happen. Judges are often not equipped to deal with issues of domestic violence because it is not their area of expertise, nor do they have to agree with the recommendation of the forensic psychologist or forensic psychiatrist in child custody litigation.
Domestic violence may not come to light during child custody proceedings because the victimized parent is afraid to bring up the issue. This is most problematic when an abusive father fights aggressively for custody of the child and the abused mother is too afraid to stand up for her child. Since courts in New York do consider domestic violence when awarding child custody, it is important to raise the issue if the other parent is violent in the home.
Even domestic violence that is not directed at the child or even in the presence of the child can factor into the court’s decision. Furthermore, domestic violence does not have to be of a physical nature; it can be emotional, or mental abuse. Because domestic violence of any sort can have such a large negative impact on the life of your child, you need to be confident that your child will not end up in the custody of a parent who will be abusive in any way.
UCCJEA: UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT OF 1997
The Uniform Child Custody Jurisdiction and Enforcement Act was drafted by the National Conference of Commissioners on Uniform State Laws in 1997. Since then, it has been adopted by 49 states, including New York, and some US Territories. The UCCJEA replaces an older uniform child custody act, which had been inconsistent with the Parental Kidnapping Prevention Act. It also provides procedures for the registration and enforcement of child custody orders across state lines. If you are faced with the possibility of interstate divorce and have children, the UCCJEA is likely to come into play. An experienced New York divorce attorney can help you navigate the legal procedures presented by this Act.
One of the key concepts contained in the UCCJEA is that of the child’s “home state.” The home state is the one in which the child has resided continuously for six months with one of the parents before the divorce proceeding has begun. If a child is younger than six months, then the relevant period is the amount of time since the birth of the child. If the child has not resided in any state for six months in a row, matters become more complicated.
The two factors to consider in determining which court has jurisdiction over this sort of child custody case are ‘significant connections” and “substantial evidence.” That is, significant connections must exist between the child at issue, one of the parents involved in the custody dispute, and the court assuming jurisdiction, and the court must have substantial evidence about the child’s relationships with her parents and other family members, social ties, and what custody arrangement would be in the child’s best interest. Sometimes two courts will have concurrent jurisdiction in such a scenario, and must communicate to determine which of the two will handle the custody proceeding.
A court has continuous, exclusive jurisdiction over a child custody case under the UCCJEA. This means that, ordinarily, a parent cannot attempt to modify an order issued by one state after moving to another state with that child. While the UCCJEA is a big step in reducing sneaky behavior by parents attempting to obtain custody of their children, it can present some legal tangles of its own. If you are attempting to resolve child custody arrangements across state lines, it is important to work with a leading attorney to secure a favorable and lasting arrangement in compliance with the UCCJEA.
HAGUE CONVENTION – INTERNATIONAL TREATY ON CHILDREN’S RELOCATION OR ABDUCTION
As our society becomes increasingly internationalized, marriages more and more often span national borders. In fact, over 6 million Americans reside outside the United States today. A big reason for this is corporate relocation. Thus, when things go south, it is possible that two spouses may find themselves in different countries. And if one of the spouses decides to bring the children with her, complex legal issues arise. The most pressing of these is, which country has the authority to issue a decision on child custody in case of a divorce.
The Hague Convention is an international treaty that attempts to set guidelines for answering this and similar questions. It is signed by 87 countries. It was implemented in the United States in 1988 through the ICARA, or International Child Abduction Remedies Act.
The following conditions must be met for the terms of the Hague convention to apply:
• Both countries involved are parties to the Hague Convention
• The child has been “wrongfully removed” without the consent of a parent who has rights of custody over the child
• The parent who removed the child is not able to establish one of the six defenses available under the Convention
• The child is less than 16 years old
For purposes of custody issues in child abduction cases, when one parent takes children out of a country in which that child was “habitually resident” without the consent of a parent who has custodial rights over that child, a “kidnapping” has occurred. Let us spin that out a little further. The removal of a child from a country, as far as the Hague Convention is concerned, is “wrongful” if the parent left behind in that country had custodial rights over the child and the child had resided in that country for a significant amount of time, developing strong emotional and social ties.
New York courts can become involved in a Hague Convention case in one of two ways. If a case is “incoming,” this means that a child has been abducted from a country that is party to the Hague Convention and taken to New York. Federal and state courts both have the ability to hear child abduction matters under the Convention, so a parent has a choice of where to bring his lawsuit. It is more likely, however, that a state family court will take into account a child’s best interests.
Outgoing cases, on the other hand, involve scenarios where a child is taken out of New York and to a different country. These cases are handled by a court in the country to which the child has been taken. In such cases, however, a New York court may need to step in to issue an order finding that New York is the child’s “habitual residence.”
PARENTAL ALIENATION SYNDROME
Parental Alienation Syndrome (PAS) is a term that was coined by Richard A. Gardner in the early 1980s in the course of behavioral research. PAS is a disorder in which a child continually insults or belittles one parent without any particular reason or justification. PAS can come about as the result of suggestions or comments made by one parent against another or the child’s own attempts to put down one of her parents.
PAS has been the subject of criticism both from legal scholars and mental health experts, and has not been recognized as a disorder by the medical community. It has also been rejected as a legal concept in court proceedings in the UK and in Canada. Nevertheless, PAS has figured in some court cases in New York, particularly in the context of child custody disputes.
Whatever the merits of PAS as a distinct disorder, it is difficult to deny that divorce has the potential to produce acrimony between parents that is often passed on to the children. At times, therefore, there is significant pressure for the children to take sides during divorce proceedings and custody disputes. In fact, the concept of a parent trying to separate a child from the other parent as a sort of punishment in the course of a divorce has been recognized since the middle of the twentieth century. This concept of parental alienation has the potential to skew court proceedings against the parent who is being alienated, potentially denying that parent the opportunity to have meaningful interaction with the child.
In more severe cases of parental alienation, informal visitation patterns may be affected. That means that it is important for a court to intervene in order to ensure balanced visitation opportunities for both parents. A parent who believes that they are the target of PAS will be well served by the services of a leading child custody attorney who can ensure that the behavioral changes in a child caused by divorce proceedings do not jeopardize his chances of a meaningful and rewarding relationship with the child.
DOMESTIC VIOLENCE IN CUSTODY TRIALS
A child custody proceeding is often an emotionally charged affair. At times, conflicting versions of events, bitterness and mutual accusations make it difficult for a court to objectively weigh the evidence and determine an outcome that is best for the children. In these situations, the judge may decide to bring in an expert psychiatrist for the custody trial.
Domestic violence expert psychiatrists have a controversial reputation in the legal community. While they can help dispel the weight of false accusations by identifying mental health issues present in the spouses or the children, these experts have come under a wave of criticism for unfairly discrediting allegations of abuse. At times, the experts also use mental health tests which are not appropriate in a child custody proceeding, or tests which do not give sufficiently conclusive results.
At times, these expert psychiatrists act with the best of intentions, but simply do not have adequate training in domestic violence issues to enable them to reach a balanced decision that will protect the best interests of the children in a custody dispute that involves domestic violence. The expert forensic psychiatrists we retain on child custody cases all have domestic violence experience and have testified numerously in trials with favorable results.
It is important, if you are in the middle of a custody dispute that involves allegations of domestic violence, that you work with a leading divorce attorney who is aware of the issues that surround the use of expert psychiatrists in child custody trials. Your attorney can help you navigate the process of analyzing the reports of forensic psychologists and forensic psychiatrists in custody battles, and cross-examining them at trial.
Experts and Domestic Violence
During some child custody cases, domestic violence is involved at which time. We might think that if one parent is violent in a domestic setting, either towards the other parent or towards the child, then child custody would always be awarded to the non-violent parent. Unfortunately, this does not always happen. During those types child custody cases, experts are needed to come in to evaluate the child and the condition of both parents to assist in determining the best placement for the child.
For more information on Domestic Violence cases, see our "New York Domestic Violence Lawyer" page.
Or for information on Experts involved in domestic violence trials, see our "Domestic Violence Expert Psychiatrists in Custody Trials" page here.
