718.864.2011 Request a Consultation

Mark Gilmer, Esq.

Sunday, September 5, 2021

Is the custodial parent interfering with your visitation rights in New York?

As a Brooklyn, New York City Family Court Attorney for twenty years I have litigated many disputes over parenting time in Family Court.  This article explores the legal standards for a parent to obtain parenting time with their child and your rights if the custodial parent is interfering with your visitation rights.  I have represented a number of parents who have their right to access their child denied by the other parent. Many times, however issues of access are worked out by settlement between both parties but this article presumes that the parents are litigating the issue in Court.

The right of access to children is a joint right of both parents and of the child.  The Family Court has held that it is generally in the best interests of a child for there to be visitation with the non-custodial parent. This must be frequent and regular for a parent to develop a meaningful and nurturing relationship with a child.The job of the custodial parent is to assure meaningful contact between the child and the non-custodial parent. Exceptional circumstances must exist such as circumstances that are harmful to the best interests of the child or that the non custodial parent has somehow forfeited his or her right to visitation for parenting time not to occur. Although not determinative the child’s wishes can have an impact on this determination taken into account the child’s age, maturity and potential to be influenced. A determination of parenting access time will based on the court’s assessments of a parent’s character, temperament and sincerity after a full hearing has been held on what the child’s best interests are.

As a New York Family Law Attorney of have many clients come to me with a lot of doubts when it comes to access to their children. This being a joint right of both parents means that it doesn’t matter if the other parent makes all of the decisions for the child, they can’t control your rights to see your child. It doesn’t matter that your were a bad spouse or boyfriend or girlfriend (unless there was domestic violence, that matters). It doesn’t mean that you need to be paying child support to see your child.  It doesn’t matter if you got a new boyfriend or girlfriend, as long as they are not a danger to your child.  It generally doesn’t matter that if you have a criminal record, as long as those crimes don’t involve the abuse of children or violence. It doesn’t matter if you live in a different state from the child. Finally, it doesn’t matter if you have a small apartment, you can sleep on the coach and your child can sleep on the bed. 

The Family Court has held that it is in the best interests of a child to have access to the non custodial parent. This is determined by looking at the totality of circumstances. This means the Court will look at all of the facts of the case to determine appropriate parental contact. The courts will look at the availability of the non-custodial parent. For instance if the non custodial parent works a lot the court will look at how much time the non custodial parent can actually spend with the child, this doesn’t mean leaving the child in the care of others for an extended period of time although having appropriate child care for the child is permissible.  The Court will look at the home environment of the non custodial parent. The Court will learn about the home environment of the non custodial parent through a Court Ordered Investigation usually done by Child Protective Services or the Administration for Children’s Services if you live in New York City. If there is not enough room for your child (remember a room and bed can be sufficient) and the home has fire detectors, window guards, and has enough food this will generally be sufficient. 

Parenting time must also be regular and frequent with the child. In my experience with cases of this type as a New York Family Law Lawyer I see occasions where the custodial parent is in charge of the access schedule give very little say to the non custodial parent which can interfere with their visitation rights. I tell my clients that they have a right to see their child and if the custodial parent isn’t giving them regular and frequent access they may need to go to Court and file a Visitation petition. My clients often say that the other parent is afraid to leave the child with them or doesn’t like their parenting style. The custodial parent’s fears about leaving the child with you may very well be in their own head.  As long as you are not acting against the best interests of your child then the court will not give in to the other parent’s possibly irrational fears. As far as parenting styles are concerned the court will give great leeway to the non custodial parent in determining the parenting style they choose with the child, as long as the parenting style is not harmful to the child the court won’t not nit pick. 

Frequent and regular access may mean that the non custodial parent has every other weekend with the child possibly with a mid week dinner visit. This is generally granted in cases where the non custodial parent works and doesn’t live near the the custodial parent so getting the child to school would be difficult to give the parent more time. The Court may add a midweek dinner visit with the child. In cases where the non custodial parent can get the child to school it may be possible to convince the Court that more time with your child should occur.  When a child is younger and not going to school an equal access schedule can be argued for. The court however may take into consideration the stability of the child and determine that because of the needs of the child it may be in the child’s best interests to spend the majority of time in one parent’s care. There are many possible variations to an access schedule and it’s not one size fits all.

In determining regular and frequent visitation the Court will look at the past agreed upon schedule you had with the custodial parent. There are times where because the custodial parent for some reason is mad at the non custodial parent they suddenly change the arrangement. Under these circumstances you may need to file for a Petition in New York Family Court to go back to the original schedule. The court may determine that resuming the old schedule is in the best interests of the child because it will provide more stability for the child.

 The job of the custodial parent is to provide meaningful access to the child. A parent that denies the other parent this access they could very well lose their custody of the child.  Meaningful access means parenting time with the child without interference by the other parent. This means the other parent can’t control what you do with the child. Meaningful access means that when the child is not with you maybe you have phone or video contact with the child. The court may pick a specific time everyday when this can occur.

 

Exceptional circumstances must be present for a non custodial parent to be denied frequent and regular access with the child. This general means where there is a danger of harm to the child.  Exceptional circumstances do not mean that the custodial parent merely disagrees with your parenting style, a showing of some sort of harm is needed. 

The Court generally rules on parenting times a few times in a case. The beginning, this is a temporary order and after a trial if the parents don’t settle, a final order. A temporary  schedule can be modified during the course of the case if there is a change in circumstances. A final  order can also be modified in a new proceeding if there is a change in circumstances.

 At the beginning of the case, the Court does not know either party and so if the other party alleges domestic violence at the first few hearings or child endangerment issues or drug use then the Court may restrict access until an investigation occurs. In drug use cases it may order a drug test.  Unfortunately, in the beginning of a case all a parent has to do is make the above allegations and it may restrict the non custodial parent’s access to their child.  With these allegations a Court may order a Court Ordered Investigation by CPS or ACS. Because you have a right to see your child the Court may ordered supervised visitation while the investigation is occurring. Your New York City Family Court  Lawyer may have to request a hearing on the access issue if the Court needs more information to make a ruling on how you get to see your child.

 In considering a final order only under exceptional circumstances will a parent’s parenting time be restricted.  There will need to be evidence produced that a frequent access schedule is somehow harmful to the child. This once again can be because of past domestic violence, especially domestic violence that occurred in front of the child. This can be because of abuse or neglect issues that are present, including excessive corporal punishment, inadequate guardianship based upon untreated drug or alcohol abuse, untreated mental illness or other serious child care concerns. Remember the court will need very strong evidence of the above to restrict access. Sometimes a forensic evaluation of the parents will be necessary in order to assist the Court in determining what to put in an order. This can occur when the above issues regarding potential harm to the child exist.

 Also a parent can forfeit their rights to see their child. This occurs when a parent has not seen the child for quite sometime and it is determined that it’s not in the best interests of the child to have visits with the other parent. I have not run into this much in my experience as a an attorney. If you go an extended period of time without seeing your child, and you have not been there for the child emotionally or financially, a step parent can possibly adopt your child terminating your rights. So if you have not seen your child in quite sometime it is advisable to quickly  file a  case in the County of the Family Court your child resides in to see your child.

Although not determinative the child wishes can be taken into consideration. The court will look at the child’s age, maturity and potential to be influenced.  The closer the child is to 18 years of age, the Court may give more weight to the child’s preference. Even if the child is close to 18 the court will look at the maturity level of the child. If the child is immature or has some developmental issues the child’s preference may be given less weight. Furthermore if it appears that the child is being negatively influenced by the other parent, called parental alienation, then this may be taken in consideration. In order to determine parental alienation the Court may order a forensic evaluation. A forensic evaluation is done by an experienced mental health professional. This professional will interview the child, the parents and other people called collaterals. This will be an advisory opinion for the court to consider before it makes its ruling. The court may also conduct what they call an in camera interview with the child and the child’s attorney to determine the child’s wishes.

Finally the Court will consider each party’s character, temperament, and sincerity to determine. This means that it is very important to listen to your family court attorney about how to act in Court because you are being judged.  Outbursts in Court or otherwise being disrespectful to the judge will count against you. Being inconsistent or dishonest about what you say during your testimony will also be held against you so it’s good to be honest.  

I hope you have been informed about the interference with visitation rights by reading this article. If you have any further questions you may call me at 718 864 2011.

 


Archived Posts

2021
2019
2015
2014
December
November
October
September
August
July
June
May
April
March
February
January
2013
December
November
October
September
August
2012
2011




© 2021 Law Office of Mark Gilmer, Esq. | Attorney Advertising
42 West Street, Suite 2/36c, Brooklyn, NY 11222
| Phone: 718-864-2011

Filing a Family Law Case | Family Law Overview | Family Court | Divorce | Cohabitation Agreements | Child Support Modifications | Maintenance | Child Custody | Paternity Petitions | Order of Protection | Family Law Mediation | Order of Protection Defense | Temporary Emergency Custody | Visitation | | Other Services | Bankruptcy | ACS Cases | Immigration | Uncontested Divorce

FacebookGoogle+TwitterLinked-In PersonalYouTubeBlog RSS

Attorney Web Design by
Zola Creative