Custody and visitation are complex issues regardless of the jurisdiction – and New York is no different. There may be times when one parent tries to keep their child away from the other parent and while it might not seem right, sometimes it is an appropriate action to take. However, for the most part, the law is very clear about visitation.

Having the law in place doesn’t keep denial of visitation from happening. If you have been denied visitation with your child, you will find good information here.

Likewise, if you feel that you are justified in keeping your child away from his or her father, you’ll find important information here as well.

If you are facing difficulty with visitation, whether you are withholding it or it is being withheld from you, you need a family law attorney to help you, first and foremost.

How Does Visitation Work in New York?

Most of the time, custody orders include a visitation schedule. The goal of the court is to provide visitation for the non-custodial parent and child so that they can bond and form a stronger relationship. Visitation is ordered when the father’s paternity has been established, making him the legal father.

The legal father typically has a right to visitation if he is the non-custodial parent. Additionally, the non-custodial parent is responsible for paying child support for the child. This is not at all associated with the visitation though. 

The court usually sets a visitation schedule, giving the non-custodial parent structured time with their child. They may have visitation every other weekend and a day or two during the week as well as phone calls, or they may have other arrangements. If parents can arrange a schedule on their own, the judge will review it and if he or she believes it to be appropriate, will include it in the order.

Does a Mother Have More Rights Than a Father in New York?

Under New York law, if the father has established his paternity, he is considered to be the legal father. As the legal father, he and the mother both have the right to parent the child and spend time with the child. They also both have the responsibility to financially support the child.

If the mother was not married to the father, he has no right to the child at all, unless paternity is established. She has sole custody and is responsible for financially supporting the child on her own.

Who Has Custody of a Child If There Is No Court Order in New York?

If there is no court order for visitation or custody, and the parents were married, both parents have equal rights to the child. If they were not married, the father has no rights, and the mother has sole custody.

This may seem like a simple solution for custody and visitation, but if the order is not filed with the court, then the court cannot enforce it. This means if the mother decided to withhold the child from the father, he cannot ask the court to enforce the visitation because the court was never involved in the case.

Is Withholding a Child from Another Parent Allowed in New York?

If the court has issued an order for custody and visitation allowing the father access to the child, the mother cannot violate that order. If the court did not issue an order allowing the father access to the child, it is up to the mother or custodial parent to determine if and when the other parent can have visitation with the child.

Can the Mother Keep the Child Away from the Father If She Was Married to Him When the Child Was Born?

Technically, the mother cannot keep the child away from the father if they were married when the child was born.

If the father was married to the mother when the child was born, the state automatically grants him paternity. If the couple separates or divorces and they do not have a court order for the custody agreement, the father has little recourse unless he files a petition with the court for visitation.

Can the Mother Keep the Child Away from The Father If She Was Never Married to Him?

The mother can keep the child away from the father if she was never married to him and he did not establish paternity.

If he has established paternity, there is no court order in place for custody and visitation, and she withholds the child from him, he can take her to court and get an order formalizing the custody and visitation agreement.

Can the Mother Keep the Child Away from The Father If He Isn’t Paying Child Support?

Visitation is not a reward for paying your child support on time or consistently. Visitation is intended to allow the child to have access to both parents and to establish a relationship with the non-custodial parent.

The mother or custodial parent cannot keep the child away from the father or non-custodial parent due to child support arrearages or failing to pay support. New York family law does not make the two contingent upon each other, they are two separate issues.

Is There Ever a Time When It Is OK For the Mother to Keep the Child Away From the Father in New York?

There are some situations where a mother may be able to keep the child away from the father.

  • If the father is a significant threat to the welfare and safety of the child or mother, such as
    • Physical, emotional, or sexual abuse
    • Domestic violence
    • Neglect
    • Substance abuse
  • The father has legally abandoned the child or is not interested in having a relationship with the child.
  • The father has agreed to allow the mother to keep the child from him for a certain reason or a specified period of time.

In any of these cases, the mother will be required to prove the grounds. In some cases, she may need to get a restraining order against the father. 

A family law attorney can be invaluable in these situations because they can be very complex. It is very important to have good legal representation for custody and visitation.

What Should You Do If You Believe Your Child Should Not See Their Father?

If you believe that your child should not see his or her father, the first thing you need to do is get an attorney. They can advise you of your rights and help you build your case.

You will have to file a petition with the court if there is no order currently in place or file modification to an already existing order.

If you are experiencing issues with custody and visitation, you need a family law attorney who cares. You need the Litvak Law firm. Call 718-989-2908 today for a case review and get the help you need. We care about your family and will help you do what’s best for them.