Custody & Visitation

Best Interest of Child

The Supreme Court of the United States in Stanley v. Illinois, 405 U.S. 645, 651 (1972), held that “[t]he rights to conceive and to raise one's children have been deemed 'essential, Meyer v. Nebraska, 262 U.S. 390, 399(1923), 'basic civil rights of man,' Skinner v. Oklahoma, 316 U.S. 535 (1942), and 'rights far more precious . . . than property rights,' May v. Anderson, 345 U.S. 528, 533 (1953).”

According to the Supreme Court the custody, care and nurture of children reside first with their parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. See Stanley v. Illinois, 405 U.S. at 651, citing Prince v. Massachusetts, 321 U.S. 158, 166 (1944). Furthermore, “the integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, 262 U.S. at 399, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, 316 U.S. 541, and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496 (1965), (Goldberg, J., concurring).” See Stanley v. Illinois, 405 U.S. at 651. Consequently, State courts must act with due regards for the parents constitutional rights.

In deciding custody and visitation rights, the most important factor to be considered is the best interests of the children. See Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 93-95, 432 N.E.2d 765, 447 N.Y.S.2d 893(1982). Consequently, the welfare of the children must come first. See Obey v. Degling, 37 N.Y.2d 768, 337 N.E.2d 601, 375 N.Y.S.2d 91 (1975);

Generally, in making a determination of the best interest of children the factors considered by the court include, but not limited to: the quality of home environment, the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, financial status and ability of each parent to provide for the child, relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent. See Eschbach v. Eschbach, 56 N.Y.2d 167, 436 N.E.2d 1260, 451 N.Y.S.2d 658 (1982); Matter of Ebert v. Ebert, 38 N.Y.2d 700, 346 N.E.2d 240, 382 N.Y.S.2d 472 (1976); Sandman v. Sandman, 64 A.D.2d 698, 407 N.Y.S.2d 563 (2d Dep’t. 1978), appeal denied, 46 N.Y.2d 705, 385 N.E.2d 1303, 413 N.Y.S.2d 1026 (1978).

The court will also consider domestic violence, abuse and neglect and drug abuse of a parent in making a determination of child custody. See Yizar v. Sawyer, 299 A.D.2d 767, 751 N.Y.S.2d 117, 2002 N.Y. Slip Op. 08864 (3 Dep’t. Nov 27, 2002); Domestic Relations Law § 240[1]. It has been acknowledged that a parent who commits acts of domestic violence or spousal abuse is generally unfit to act as the custodian of his or her children. See Acevedo v. Acevedo, 200 A.D.2d 567, 606 N.Y.S.2d 307 (2d Dep‘t 1994); Rohan v. Rohan, 213 A.D.2d 804, 623 N.Y.S.2d 390 (3 Dep’t. 1995).

Children’s Wishes

Minors who are subject to family court proceedings have a right to be represented by counsel of their own choosing or by law guardians. See Family Court Act § 241. Often a law guardian is appointed by the court to help protect their interests and to help them express their wishes to the court. The desires of children are not controlling in custody matters. However, such desires are important particularly where the children are advanced in age and have freely indicated a strong preference for one of their parents. See Eschbach v. Eschbach, 56 N.Y.2d 167, 436 N.E.2d 1260, 451 N.Y.S.2d 658 (1982); Hughes v. Hughes, 37 A.D.2d 606, 323 N.Y.S.2d 621 (2 Dep’t. 1971). At times the court will hold an in camera interview with the children to determine their wishes.

Experts and Other Professionals

Often the family court will seek the expertise of other professionals, such a psychologist, licensed social worker, counselors, and teachers. See Eschbach v. Eschbach, 56 N.Y.2d 167, 436 N.E.2d 1260, 451 N.Y.S.2d 658 (1982); Fox v. Fox, 177 A.D.2d 209, 582 N.Y.S.2d 863(4 Dep’t. 1992).

Parental Relocation And Child Custody

Cases in which a custodial parent's desire to relocate conflicts with the desire of a noncustodial parent to maximize visitation opportunity are complex circumstances that are determined by New York Family Court judges or hearing examiners on a case by case basis. In making a determination of whether to modify a custody arrangement the court mustexamine what arrangement would be in the child’s best interest. See Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 93, 432 N.E.2d 765, 447 N.Y.S.2d 893 (1982); Eschbach v. Eschbach, 56 N.Y.2d 167, 436 N.E.2d 1260, 451 N.Y.S.2d 658 (1982).

In Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996), the New York State Court of Appeals analyzed some of the factors that Courts in New York should consider in deciding a custodial parents request for relocation. The court emphasize that, the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern.

These factors include, but are certainly not limited to:

• Each parent's reasons for seeking or opposing the move;
• The quality of the relationships between the child and the custodial and noncustodial parents;
• The impact of the move on the quantity and quality of the child's future contact with the noncustodial parent;
• The degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move;
• The effect that the move may have on any extended family relationships; and
• The feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.

Alternatively, where a child's ties to the noncustodial parent and to the community are so strong as to make a long-distance move undesirable, the availability of a transfer of custody as a realistic alternative to forcing the custodial parent to remain may have a significant impact on the outcome.

In sum, based on the totality of the circumstances and all of the proof, the court will determine whether the custodial parent has established by a preponderance of the evidence that a proposed relocation would serve the child's best interests.

NOTE: The use of the Internet for communications with the firm will not establish an attorney-client relationship and messages containing confidential or time-sensitive information should not be sent.