The end of a relationship, whether it is a marriage termination or a committed couple choosing to go their separate ways, is never easy. It gets even more difficult, though, when there is a child involved.

When a couple separates the best interest of the child must be kept at the forefront. New York family court recognizes this as well and prioritizes the welfare of the child when determining custody and visitation.

Here’s what you need to know about visitation in New York.

How does visitation work in New York?

Visitation is determined by what is in the best interest of the child. In a divorce, the parents usually set visitation. If one parent has physical custody, the other parent is entitled to meaningful and frequent visitation. The only exception to that is if visitation with that parent would present harm to the child. This is the case if domestic violence, abuse, or other harmful behavior is involved.

In New York, parents, adoptive parents, stepparents, siblings, half-siblings, and grandparents have the right to request visitation. The rights of the biological parents will take precedence over any other family member who may claim to have a right to visit the child. The court will determine what is in the best interest of the child so family members like stepparents, grandparents, and half-siblings may not necessarily be shut out of the child’s life completely.

What is standard visitation in NY?

The court determines visitation by taking into account a number of factors. The child’s age, their relationship with the non-custodial parent, how close the parents live to each other, the parents’ work schedules, and more. From there, the judge will create a visitation plan that is best for the child.

One of the most common visitation schedules for the non-custodial parent is set every other weekend with one or two mid-week visits. It may alternate the major holidays and birthdays. Depending on the age of the child, they may agree on longer visits over the winter break, spring break, and summer vacation. Other visitation schedules may also be worked out with the parents.

If the parents have not been living together and have created a visitation schedule that is working for the child and the parents, the court may choose to continue by keeping the status quo. 

At what age can a child decide visitation in New York?

The age at which a child can make a definitive decision about their visitation that the court will automatically honor is 18 years old. The parents are legally obligated to adhere to the custody order and visitation schedule until the child either reaches 18 years old or is emancipated.

The court will consider the wishes of the child, but that does not mean it will comply with them. Of course, the older the child is, the more weight their desires will carry, but ultimately, the court will weigh all factors to determine what is in the child’s best interest.

How can a father get visitation rights in NY?

A parent, father, or mother, can file a petition with the New York Family Court to get visitation rights with the child. They would have to file a petition against the person who has custody and if the parents do not have a good relationship or if there is animosity between them, it can get messy and be difficult. However, in most cases, both parents do have a right to have visitation with their children.

Typically, visitation is decided at the same time that custody is determined. However, a petition for visitation or visitation modification can be filed separately and at any time. If a parent’s situation changes such as a move or schedule at work, it can make a change in the visitation schedule necessary. Likewise, if the parent believes that the child will benefit from having more time visiting them, then modifying the visitation schedule may be something they choose to pursue.

What are the rules for supervised visitation in NY?

Sometimes a child’s safety or health could be at risk if allowed to visit their parent alone. If the judge finds evidence of this, they may order that the parent has supervised visitation with the child.

Some situations where supervised visitation may be ordered include:

  • There is a concern that the child may be kidnapped by the parent
  • The child and parent have been separated for a long time
  • The parent has been accused of or has a history of substance abuse, domestic violence, child neglect, or child abuse
  • The parent has a mental illness

Supervised visitation means that the child is able to spend time with their non-custodial parent, but only if that visitation is supervised by a neutral third party. The supervisor must be present with the child during the entire visit.

When the court orders supervised visitation, the judge will specify the supervisor as well as the time, length, and location where the visit will take place. The supervisor can be someone that the parents agree on or they can be just someone with an agency. Whomever the supervisor is, they must be court approved and named in the court order for supervised visitation.

Exchanges, when one parent picks up the child from the other parent, may also be monitored, even without supervised visitation. These monitored exchanges are ordered if the child’s well-being or the well-being of the parent is in question. The order may require that the exchange take place somewhere safe such as a school or police station.

When can you deny visitation to a non-custodial parent in New York?

A priority of the court is for the child to have a strong relationship with both parents if they live apart, are separated, or are divorced. However, that is not to be at the expense of the child’s best interest.

Overall, the court holds the best interest of the child as the highest priority so if there is evidence or belief that the child would be harmed by the visitation, the court has the authority to deny the parent’s visitation rights.

While the court-ordered visitation stands and both parents have a legal obligation to comply, there are some cases where a parent can deny the other parent visitation – but these are very extreme situations. If the parent shows up for visitation and is intoxicated, under the influence of drugs, or if they are acting in a way that is violent or reckless, then the other parent may have some room to deny visitation. 

In such cases, the incidents should be documented by the police, if possible. It is also the parent’s responsibility to file a petition with the court to modify visitation as soon as possible so that the visitation can be stopped until the other parent’s behavior is corrected or supervised visitation can be ordered.

How is the custodial parent determined in NY?

Under New York law the court has the authority to make orders about the custody of a child until the child turns 18. If the child is developmentally or intellectually disabled, when they turn 18 the parents can request that the court appoint an Article 17-A guardian. Visitation and similar issues may be ordered by the court depending on the level of the disability. Article 17-A guardianship is typically requested by a parent.

Any type of visitation case takes into consideration the best interest of the subject of the visitation, be it a child or disabled adult. If there is no court order, equal rights are given to both parents so they each have legal and physical custody of the child.

New York law calls the custodial parent the residential parent. That is the parent who has primary or sole physical custody as ordered by the court. Many factors go into the judge’s decision to make one parent the residential parent over the other. The child’s age, relationship with the parent, staying in the family home, and other factors all play a part in shaping the judge’s decision. Then the non-custodial parent usually gets visitation.

Can a child choose not to visit a parent in New York?

A child is legally obligated to comply with the orders of the court regarding visitation and custody. If the child does not want to visit a parent, they cannot simply stop going. The parent must file a petition for modification of visitation and the judge will hear the child’s wishes as long as the court considers the child to be old enough or mature enough to have sound reasoning.

If there is evidence that the environment that the child is in during visitation is harmful or not healthy, that should be presented to the court.

How long does a father have to be absent to lose his rights in NY?

Either parent can have their parental rights terminated for several reasons. The court does not take this lightly and will do everything in its power to encourage a healthy relationship between the child and the parents. Sometimes that is not possible, and one parent may move to have the other parent’s rights terminated.

Some of the reasons that a parent could lose their rights include:

  • Failed to maintain contact with the child for 12 months and failed to plan for the child’s future (permanent neglect)
  • Repeatedly or severely abused the child
  • Legally abandonment of the child for a minimum of 6 months
  • Parent has a mental illness that prevents them from taking care of the child

If the judge finds compelling evidence for any of these, they may choose to terminate the rights which means that the parent will no longer have a right to visitation.

There are a lot of moving parts in a custody and visitation case. If you are just beginning the journey or are seeking to modify visitation, you need a solid, experienced family lawyer who will help you protect your rights and do what is best for your child.

Call the Litvak Law Firm today at 718-989-2908 and let us help you. Your priority is your child’s best interest – so is ours.