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Tuesday, December 21, 2021

What are reasonable rights of visitation? Written by Brooklyn, New York Visitation Attorney

At the Gilmer Law Firm, PLLC, in my 20 years of experience as a a Brooklyn, New York Visitation Attorney, I have represented numerous parents in all five boroughs seeking parenting time in Family Court and Supreme Court Divorce proceedings. This article will delve into what is reasonable regarding a parent’s visitation rights in New York. What is reasonable often depends on a number of factors which I will discuss below. This article presumes that two parents are willing to negotiate a  schedule with or without Court. Sometimes parents get well along enough that they don’t need Court intervention to figure out a proper schedule.  Even if a Court case is filed, most cases are settled before the need to have a trial.

 

The Law 

 

When a New York Family Court has to rule on a visitation issue it must make that decision based on the best interests of the child under the totality of circumstances of the case.  This means the Court will look at all the relevant facts in a case to determine what is best for the child. It is in a child’s best interests for them to develop a meaningful and nurturing relationship with the non-custodial parent. Furthermore parenting time must be frequent and regular. Only under extraordinary circumstances, like where parenting time would be detrimental to the child, will a parent not be granted reasonable visitation. In a case where the custodial parent and non custodial parent live far apart from each other the Court count impose geographical limitations on the visitation.

 

Parenting time is a right held jointly by both parents. Interference by one parent of another parent’s visitation rights in no uncertain terms is so against the best interests of the children that it raises a strong probability that the parent preventing parenting time is unfit to have custody. A parent that moves from the jurisdiction thus preventing the other parent from having reasonable visitation has a high risk of losing custody. Even when there is animosity between the parents and claims that visits are disturbing to the child, the Court will tread very lightly in depriving the non custodial parent of his or her rights.  The Courts zealously protect the parenting time interests of the non-custodial parent. 

 

Filing for Visitation

 

As a Brooklyn,  New York Visitation attorney I have filed visitation petitions for non custodial parents in all five boroughs. Your visitation petition must be filed in the County your child has lived in for the past six months or more. You will put in the petition all of the biographical details  of all parties involved, both parents and the child.  You will also allege in this petition why it is in the child’s best interests to have visitation with you.  Once filed, you will get a Summons with a Court date. You must have the Summons and Petition personally served on the other parent (you can’t do it yourself nor can it be served on third parties) at least 8 days before the Court date according to the Family Court Act. In a divorce proceeding you will file divorce papers that state you want visitation (called a Summons with Notice and Verified Complaint) in the Supreme Court of the County your child lives in.  You will also have to serve these papers personally and the Court date will be sometime thereafter if you can’t reach an agreement with the other parent. When you reach an agreement without the need of the Court to intervene this is called an Uncontested Divorce. If you haven’t seen your child in quite sometime and you have concerns about his or her safety or well being you can file an Order to Show Cause for emergency visitation.  In divorce court you can file what they call an Order to Show Cause for pendente lite relief during the pendency of your proceedings. The point of doing these emergency filings is to get a quicker court date. 

 

Once you go to Court, you will have numerous conferences and then trial if you cannot settle. Must parents settle prior to going to trial to avoid the cost and expense of litigation. If your matter is settled it will be done via what is called a Stipulation of Settlement. The Stipulation must be approved by the Judge if you are in court. Very rarely does a Judge step in and reject an agreement between the parties. This generally happens when the parents have a history of animosity but despite this they enter into a joint custody agreement. When there is animosity between the parents the Court is unlikely to agree to joint custody. Once an agreement is reached in Court, this will be a binding document and both parties will be held to it. Any violation of it can lead to an enforcement petition being brought, a finding of contempt against the non conforming parent and even a modification of the prior agreement.  Therefore it is wise to follow the agreement. 

 

What are reasonable visitation rights?

 

Whether you go to court or not, it is important to remember that  the law is very adamant in protecting the rights of a non-custodial parent.  Therefore it is wise to settle your visitation issues prior to going to trial because a Judge’s decision can be unpredictable. Settling out of. Ours is optimal. No one other than the parents of the child are in the best position to determine what is best for their child.  Therefore, in trying to work out an appropriate schedule, the parents will need to look at all the circumstances and determine what is best for their child.

 

The following is a list of reasonable visitation agreements. As you can see they are very fact specific:

 

  • Joint physical Custody.  A joint physical custody agreement means that both parents will share parenting time with their child 50/50. This agreement will generally work if both parents live in close proximity to each so that there will be no issues bringing the child to school or to day care.  It should only be done where both parents have an amicable relationship. Both parent’s work schedules should also allow them to spend quality time with the child. Thus if one parent has a very busy work schedule it doesn’t make sense to have a joint physical custody arrangement if the child is going to be in daycare or with relatives or friends the vast majority of time. Furthermore as going back and forth to each parent’s house can be stressful, your child needs to be emotionally in the position to do this. Courts generally don’t grant joint physical custody arrangements after trial because it can be seen as detrimental to the need for stability of the child. It can be seen as disruptive to the child’s life. It is wise to hire an experienced New York Visitation Rights attorney to work out an agreement of this type for you. 
  • Weekend visitation rights with a midweek dinner visit and splitting the holidays and vacations.  This type of arrangement is most commonly awarded in Court after a trial if the non-custodial parent is fit to have unsupervised visits (see below for supervised visits). The Court sees this as reasonable access to the child and sees it as promoting stability. This works in situations where the custodial parent has been the primary caretaker of the child and the non-custodial parent’s work schedule or other life factors make it difficult for him or her to have more time. This is appropriate where the child is used to spending more time with one parent.
  • Visitation for the majority of school breaks.  In cases where one parent has relocated, especially where the other parent has consented to this relocation, and since the law requires frequent and regular visitation, the non-custodial parent should get the majority of the summer break (for example, 6 weeks out of an 8 week summer break), and during all of the spring and winter recesses. The holidays can still be split.  
  • Visitation with conditions. Although a Court can’t force a person to undergo therapy prior to ordering visits, this may be a reasonable provision in a visitation agreement if the non-custodial parent has anger managment issues or other psychological problems. If this parent’s parenting skills need some work then maybe a parenting course. If one parent has drug and alcohol issues maybe a requirement of drug testing prior to visits, or a provision that that parent can’t be under the influence of alcohol or drugs during the visits. If the substance abuse problem is severe maybe the parent can agree to treatment before visits begin.
  • Having other professionals decide a parenting time schedule.  When you can’t work it out with the other parent, prior to going to Court, maybe it’s a good idea to have a mediator, a therapist, or some sort of consultant determine what the schedule will be. You can also both hire an attorney to negotiate an agreement or to review an agreement made with the aforementioned third parties. This will take a willingness on both parties’ part to abide by the decisions made by this third party.  If you are in Court, the lawyer for the child will be instrumental in fashioning an agreement that she believes is in the best interests of the child.
  • Supervised visits. The court will only order visits of this type if there is a likelihood that the child will be harmed if unsupervised visits take place. Two parents can agree to visits of this type if the non-custodial parent is able to acknowledge that his treatment of and judgment surrounding the child in the past hasn’t been the best. This is generally temporary in time and is for the purpose of the non-custodial parent to work on his or her parenting skills.  These visits frequently occur in neglect cases but this article presumes no neglect case is pending. You can set up these visits at an agency that specializes in supervising visits. You can get the visits paid for in court if you qualify financially otherwise they will have to be paid for. The visits will be observed and you can get a report memorializing the quality of the parent’s time with the child. You can also have what they call therapeutic visits. During this parenting time you will be observed by a license professional that will also write a report on the quality of the visits.   
  • Whatever has been working. If it ain’t broke don’t fix it. If the agreement you have has been working for the child then it may be best for that child to keep the agreement as is.

 

Pick up and drop offs

 

Sometimes another thing that pops up with parenting time is where will child be picked up and dropped off for visits. This is not much of an issue for parents that live close together. The burden of pick up and drop offs can be shared equally, meaning one parent can pick up the child either from school or the other parent’s home and the other parent can drop off the child at the other parent’s home or the child’s school.  This doesn’t work out perfectly when one parent lives far away from another. Sometimes there is a cost to have the child delivered and the issue of who pays for the transportation costs can arise. Finally, if there is animosity between the parents, then pick up and drop off may be more appropriate at a public place or a police precinct.

 

In conclusion, reasonable visitation rights are determined by the facts of the case and the best interests of the child.  One size definitely does not fit all. A parenting time agreement can be worked out in either a New York Supreme Court in a divorce proceeding, in Family Court or without Court intervention. If you work it out outside of Court you must really be able to trust the other parent because there is no real way to enforce an out of court agreement. It is wise to hire a New York Visitation attorney like myself to negotiate the terms of the agreement for you because it can be complicated.  I hope this article answered some of your questions but if you have any other feel free to call the Gilmer Law Firm, PLLC at 718-864-2011.

 

 



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