YOUR RELATIONSHIP WITH YOUR LAWYER
GROUNDS FOR DIVORCE
EQUITABLE DISTRIBUTION: THE DIVISION OF MARITAL PROPERTY
MAINTENANCE (ALIMONY OR SPOUSAL SUPPORT)
HEALTH INSURANCE
DIVISION OF DEBTS
PRIOR TO THE DIVORCE DECREE
POST-NUPTIAL AGREEMENTS
CUSTODY
GRANDPARENT VISITATION
CHILD SUPPORT
DOMESTIC VIOLENCE
ANATOMY OF A TYPICAL DIVORCE ACTION IN WESTCHESTER COUNTY
SUMMARY OF SELECTED PROVISIONS OF THE DOMESTIC RELATIONS LAW
RESOURCES AND READINGS - PACE WOMEN'S JUSTICE CENTER
The most common forms of custody are sole custody, which gives one parent authority to make all decisions, and joint custody, which often refers to parental sharing of major decisions concerning child rearing. Legal custody refers to the authority of one or both parents to make decisions as to the child's health, education, welfare and other interests. Physical custody describes the physical residence of the child. For example, one parent may have sole physical custody while the parents have joint legal custody.
Regardless of the custody label, parents have great latitude to determine a custody arrangement by entering into a written custody agreement. Under the court rules, parents are encouraged to enter into a Parenting Agreement at the early stage of the litigation. In the Supreme Court, Westchester County, a professional is available to assist the parties in reaching agreement.
The mother and legal father can ask for custody. A legal father is a man who has signed an Acknowledgement of Paternity or received an Order of Filiation from the court or is listed as the father on the child's birth certificate. Relatives and friends of the child can also ask the court for custody. Under these circumstances, the relative or friend must prove that there are “extraordinary circumstances” that would give them the right to ask for custody in preference to either parent and, if “extraordinary circumstances” exist, that it is in the best interest of the child for the friend or relative to have custody.
The laws relating to custody emphasize the best interest of the children. Both natural and adoptive parents may not ordinarily be denied custody unless there is gross parental unfitness. There are numerous factors considered by the court in making custody and visitation determinations. Such factors include: age, physical, mental and emotional health of the child and/or parent, and the quality of the home environment, including continuity, stability and security in the child's home. Other factors that are considered include the primary caretaker status of a parent (which may not necessarily override other factors), whether a parent has made unfounded allegations of abuse, and the recognition (or lack thereof) of the importance that a child have a relationship with the non-custodial parent (alienation). Custody is not awarded after a child has attained the age of eighteen. (Note, however, that the statutory “cut-off” for child support, absent other agreement of the parents, is twenty-one years of age.) When custody is contested, the court may appoint an “attorney for the child” (formerly called a “law guardian”) to represent the child(ren). This person is a lawyer who will interview the children (if age appropriate) and represent the child(ren)'s wishes to the court. If the child is of a young age, this person is required to make a recommendation to the court concerning the custody arrangement.
Traditionally, custody of the minor child(ren) of a dissolved marriage was granted to one parent (“sole custody”). The custodial parent had the exclusive right and responsibility to provide for the care of the child and to make all minor and major decisions about such issues as education and medical care. Joint custody refers to an arrangement of sharing these rights and responsibilities between the parents. Although some joint custody arrangements provide for residence of the child to alternate on a daily, weekly or monthly basis, joint custody does not necessarily involve an even split of the child's time between the parents' respective homes.
The sharing of responsibility for a child's welfare requires that a couple be able to subordinate any acrimony between them to the accomplishment of this effort. In recognition of this, courts generally reserve joint custody for divorced couples who demonstrate an ability to maintain a relatively stable and amicable relationship regarding the children's needs. This does not necessarily mean that the desire for joint custody must be mutual before it can be ordered by the court. However, the parents must be able to make joint decisions in matters relating to the care and welfare of the child. It should be recognized that a joint custody relationship can turn into a “power play” between former spouses. Joint custody is not recommended where one parent is likely to impose her or his will on the other parent by, for example, refusing to approve the choice of a doctor or to fill out financial assistance forms which are required in financial aid applications. However, a moderate level of disputes between parents may not necessarily preclude an award of joint custody.
There is a far greater likelihood of achieving a joint custody relationship by agreement between the parties than by request to the court. New York courts attach significance to a custody determination made by the parents unless the arrangement is detrimental to the child.
In determining which parent of a marriage will be awarded primary physical custody of the children of the marriage, a judge may take into account, but is never bound by, the expressed wishes of the children through their attorney. The desires and preferences of a child are not a controlling or determining factor. However, the choices of older adolescents may receive greater weight in the determination of custody. The court will also consider whether the children's feelings were fostered by the hostility of one parent toward the other.
Domestic Relations Law Section 240(1)(a) states that upon a sworn statement that the other party has committed an act of domestic violence against the person making the statement, or a family or household member, and the statement is proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interest of the child, together with such other facts as the court deems relevant, in making an award of custody.
There are several provisions that apply to obtaining a passport for a minor. For passport purposes a minor is defined as any unmarried person under the age of 18 years old. Either parent (U.S. citizen or not) may apply for a U.S. passport for their minor child. However, under the Two Parent Consent Law, if the child is under the age of 16, both parents must consent to obtaining a passport for their child or one parent must appear in person and supply a legal document showing that s/he can apply without the other parent's consent. Passport Services will require documentation of one of the following: evidence of sole custody, a court order allowing the parent to travel with the child, a written statement that the other parent agrees to issuance or is unavailable, a termination of the other parent's parental rights, or compelling humanitarian reasons relating to the welfare of the child. Also, when applying for a passport on behalf of a minor under the age of 16, the child is required to be present. Under exceptional circumstances the United States Department of State will authorize a parent, acting alone, to obtain a passport for a child. Parents seeking to obtain passports under these circumstances must complete and submit United States Department of State Form DS-3053. Please see the Resources and Readings Section at the end of this Q&A for further resources.
Grandparents or a third party may only apply for the passport for the child(ren) if they have a document of guardianship or a notarized statement from both parents/guardians giving the grandparents and/or third party permission to apply for the child. The statement must include a photocopy of the parents'/guardians' identification. When the statement is from only one parent/guardian, the third party must present evidence of sole custody of the consenting parent/guardian. Minors who are over the age of 16 execute their own passport application with proper identification from a parent or responsible adult.
Lacking agreement of the parties, the court may order a parent to provide a child's passport and required travel documents to the other parent.
U.S. Department of State
Law Enforcement Liaison Division
CA/PPT/S/L/LE
44132 Mercure Cir
PO Box 1227
Sterling, VA 20166-1227
The mailed request must contain a notarized letter that includes the full name, date and place of birth of the child, address and telephone number for the requesting parent/legal guardian, and the reason for needing the child's passport information. Requests for passport records take 4-8 weeks to process.
If one parent/guardian thinks the other parent/guardian may try to take the child out of the country without permission, the parent/guardian may enroll a child under the age of 18 in the Children's Passport Issuance Program (CPIAP). If a passport application is submitted for a child enrolled in the CPIAP, the program allows the Department of State's Office of Children's Issues to contact the requesting parent/guardian to verify whether (s)he approves the passport issuance. To enroll in the CPIAP, mail appropriate forms and documentation to:
One means of redress is under the Hague Convention on the Civil Aspects of International Child Abduction, which has the objectives of securing the prompt return of children wrongfully removed to or retained in a participating country (“Contracting State”) and ensuring that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States. Not all matrimonial attorneys deal with such matters and it is necessary to consult with a qualified professional in the field. Inquiries of this nature should be addressed to the: