Divorce is hard, but when children are involved there’s a much greater complexity to the case. Suddenly, it isn’t just about two people and what they want, it’s about a child. It’s about deciding what is best for the child in terms of custody, visitation, and child support.
It’s about what is best for the child.
A child custody trial can be daunting. A lot of preparation goes into it and the parties must appear before a judge – in a courtroom. For some people that’s very intimidating, but knowing what’s ahead and what to expect can make the process much easier to handle.
If you are facing a custody trial in New York, here’s what you need to know.
How is jurisdiction determined for New York custody trials?
When a state has jurisdiction in a case, it has authority over the custody case and that is where the case must be heard.
In custody cases, jurisdiction is awarded to the state that is the child’s home state. Under New York law, if a child has lived in New York for at least six consecutive months, they have established residency. It is their home state. This is, of course, not the case with infants who are younger than six months and therefore cannot have lived in the state for the required amount of time.
In those cases, if the child has lived in New York since birth then they are a resident and New York is their home state.
If a parent moved to New York and wants to file for custody there they will have to wait for six months to establish residency. They also have the option to return to the state where they lived with the child previously and file there.
If the child is in danger such as an abusive situation, the parent may be able to petition the court for a temporary custody order. In these emergent situations, the residency rule is waived.
Other circumstances may affect the jurisdiction rules in New York. A family law attorney can help navigate the system and apply the correct laws to the case.
Who can file for custody in New York?
Parents are not the only people in a child’s life who can ask the court for custody. Anyone who is close to the child and has an important role in their life can do it. This can be a grandparent, aunt, uncle, adult sibling, and sometimes even close friends who can ask for custody.
The judge will decide if the person is qualified and able to take custody of the child.
If the child is living with a parent and the person is attempting to take the child away from that parent, the judge will consider the situation and identify any potential extraordinary circumstances that would create a situation where the child’s best interest is to be with the person and removed from the parental home.
How long does a child custody case take in New York?
The length of a custody trial depends on several factors. It really depends on the case. Some of the factors that affect the length of a child custody trial in New York include:
- The court’s schedule
- If a forensic custodial evaluation is required
- The amount of discovery that must take place
- One or both parents ask for more time
- The court where the case is heard
Custody cases are heard in either the supreme court or the family court. Custody cases heard in the supreme court typically take around three months from the preliminary conference until the actual trial. Family court tends to have a busier calendar so it may be longer than that from the preliminary conference to the trial.
The trial itself can take a few hours, a day, or even a week or more. And even having a court date does not guarantee that the trial will be on that day. The judge’s schedule could change or one of the parties may ask for more time. Either of these can cause delays in the cast.
How does New York determine custody?
In New York, the first and foremost consideration in determining the best custody situation for a child is to do what is in the best interest of the child.
In a custody case, the judge must look at all the potential situations and decide which one best serves the child’s best interest. While finances, housing situation, and schooling are all taken into consideration, it is all done with the measure of what is best for the child.
What is the best interest of the child test in New York custody cases?
When looking at what custody situation best serves the child, the judge will employ the “best interest of the child test.” This involves looking at a number of factors:
- Primary caretaker
- Stability
- The child’s relationship with each parent
- Active drug and alcohol use
- Child care arrangements
- Living arrangements of the child’s siblings
- Spousal abuse
- The parent’s mental health
- Abandonment, neglect, or abuse of the child
- The parent’s physical health
- Educational opportunities
- Interference with visitation
- Court’s observation of each parent
- Each parent’s finances
- The child’s preference
- Conditions within the home environment
There may be other factors as well, but that depends on the case. Any parent who wants to know how to win a custody case in New York should look for ways to show that the child’s best interest is with them.
How do you prepare for a custody trial?
Having an experienced attorney is one of the best ways to prepare for a custody trial. From there, review the original court order that outlines the issues and put together evidence that strengthens those areas.
Next, gather evidence. Depending on the case, there are any number of things that can be used:
- Logs for the other parent’s visitation, phone calls, and other contact with the child
- Logs of communication and interaction between the parents
- Videos and photos of the parent and child to show a close bond
- Report cards
- Medical records
- Counseling reports
The judge will take these things into consideration so it is important that the parent show a good relationship with the child.
What happens before a custody hearing in New York?
Once the petition for custody is filed, the other side must be served a copy. That way they will know about the filing and know where to go if they wish to contest it.
In preparing for an upcoming trial, the attorneys will have what is called “discovery” which means both sides share their evidence with the other. They may have a list of questions that the other side must answer, and they often share witness identities and other evidence.
What happens in a New York custody trial?
The custody trial is held in a courtroom with a judge. The parties who are named in the petition for custody will be present as well as their attorneys, but there may also be witnesses that include family friends, teachers, and relatives. There may also be social workers, doctors, court-appointed guardians, and psychologists present.
During the trial, the attorneys will represent their evidence and will call their witnesses to give testimony under oath. The judge may talk to the child either in the judge’s chambers or he or she will clear the courtroom and talk to the child there.
If caseworkers visited the child’s home, the judge will review their reports. The people named on the petition may each be given time to give their own testimony and be questioned by the opposing counsel.
Once all the evidence has been presented and the witnesses have all given their testimonies, the judge will make a decision based on what is in the child’s best interest.
If you are facing a custody trial, you need an experienced, talented, knowledgeable family lawyer to present your case and protect your rights. You need the Litvak Law Firm. Call today 718-989-2908 for a free case review and find out how we can help you.