Many clients ask me: How do I get a temporary Order of Visitation in my Family Court Case?
The decision of a Judge to Order visitation at the beginning of a custody or visitation matter is one of the most important things that can happen in a case of this type. Matter of fact, the “pendente lite” Orders (ones made in an active case prior to the cases resolution, literally meaning “pending litigation”) a Judge makes substantially affect the tone of the custody case. Many inexperienced attorneys go to court on the first court date and try to impress their clients, showing them that he is the “pitbull” lawyer he claimed he was when he was hired by them, and make a horrible first impression on the Judge in a custody or visitation matter. I have seen Attorneys representing Petitioners tell the Judge that their client doesn’t want the non-custodial parent to have visitation at all or improperly ask for supervised visitation. I always tell my clients that I will be a pitbull for them when it is reasonable to do so and properly inform them about t date what is reasonable to request at the beginning of a Family Court matter involving custody or visitation and to inform my clients of the likelihood of such a request being granted by the Judge. My job is to zealously represent my clients and make sure my I employ a proper strategy to attain their goals. This article highlights situations regarding temporary orders of visitation and supervised visits.
What happens at the first court date?
At the first court date in a Custody or Visitation case in Family Court, the Judge will determine a number of things. First of all the Judge will determine if the Court has jurisdiction over the Respondent (the person responding to the Petition filed by the Petitioner). The judge will ask the Petitioner for the Affidavit of Service or ask the Respondent if they consent to service of Petition. The petitioner in a custody case is asking for custody of a child or children. The petitioner in a visitation case is asking for visitation with a child or children.
Once jurisdiction has been established at the return of process court date, the court will inquire if the case can be settled. A settlement in a custody case is an agreement by two parties (generally the biological parents) about the terms of custody and the terms of visitation (now referred to as parenting time). The agreement can be sole custody to one parent with parenting time to the other. Another possibility is joint legal custody and sole physical custody granted to one parent. The final option is joint legal and physical custody. The court generally will not approve of an agreement of joint custody if there is evidence that the parties don't get along. A Family Offense Petition filed simultaneously with the custody petition is good evidence that the parents do not get along.
If no agreement can be reached at the first court date, the court will explore the possibility of granting visitation temporarily to the non-custodial parent during the pendency of the proceedings.
The non-custodial parents request for a temporary Order of Visitation
When a client comes to my office, I tell them to expect the Judge to grant a temporary order of visitation at the first court date. A few of my clients, when told this, state that they don't want the other parents have any visitation. They will then site a number of reasons for this, like, my husband left me and my kids alone and because of this he doesn't deserve to see his kids.
I tell my clients that they have to be reasonable when it comes to this issue and make a decision that is in the child’s best interest.. The circumstances of the case will of course determine how reasonable they should be. If a person goes into court, however, and states that they don't want the non custodial parent to see their child at all, it is very likely that the court will give them a tongue lashing at best. This attitude can be very detrimental to the custodial parent's case because first impressions are everything and the Judge will most likely think that this parent will not foster the relationship between the child and the other parent. The parent that will best foster the relationship between one parent and the other is the one likely to get custody. The judge could very possibly have made a determination on custody at that first court appearance.
So what is reasonable?
Under most circumstances a parent will be allowed visitation. People in prison are allowed to see their children in prison. A person would be very hard pressed if they are seeking to deny the other parent visitation altogether. The way the temporary visitation will be done is often litigated at the first court appearance. One side may ask for supervised visitation. Reasons for supervised visitation at the beginning of a case may be for a number of reasons. The term “supervised” sometimes justifiably, has a bad connotation. The supervised visits a talk of below are not necessarily those feared visits a parent has at the local social service office. Supervised visits can be supervised by the custodial parent, the grandparents or other trusted individuals. An agency supervised visit would be appropriate when there is, for instance, an Order of Protection preventing the non-custodial parent from being around the custodial parent or child.
REASONS FOR REQUESTING SUPERVISED VISITATION AT BEGINNING OF CASE
1. Drug Problem
The non custodial parent has a drug problem he or she refuses to seek help for. Under these circumstances, it is reasonable that the custodial parent request drug testing and enrollment into some treatment program prior to unsupervised visits taking place. To ask for supervised visits however, in a case where the parent has no proof that the other parent uses drugs would be unreasonable.
2. Mental Illness
The non-custodial parent has an untreated mental illness that they refuse to seek treatment for. Here it would be reasonable to request that the parent seek out help from a professional for his or her problem prior to granting unsupervised visits. To ask for supervised visits however in a case where those custodial parent makes allegations of mental illness without any facts to support it, ( i.e. psychiatric hospitalizations, suicide attempts or history of extremely bizarre illogical behavior), the request of supervision may be unreasonable.
3. Domestic Violence
In making a determination of custody or visitation the court is required to take into account the presence of domestic violence. So it would be reasonable for a parent to request that the perpetrator of domestic violence (against the custodial parent and not the child) to complete an anger management class prior to unsupervised visits taking place. In more serious situations, the child and custodial parent may be granted an Order of Protection, and under these circumstances visits might not occur at all or visits would take place in a very safe environment to protect the child and parent. In a situation where a custodial parent alleges facts that do not rise to the level of a Family Offense (like arguments without violence or threats of violence and where the child was not present during these altercations) it may be unreasonable to ask for supervised visits.
4. The infancy of the child
It may be reasonable to ask for supervised visits on a temporary basis if the child is a new born or very young and the non-custodial parent has no prior experience raising a child. Here the non-custodial parent would see the child for a few hours throughout the week to learn the child routines, feed and bathe the child etc. The supervision here could be by grandparents or some other trusted individual. Once sufficient time passes, a transition to unsupervised visits could take place. As all parents know, taking care of a child in its first few years of life is very challenging. To take a newborn out of the arms of its first primary caretaker for extending periods of time would not only be difficult for the new non-custodial parent and would not necessarily be in the child’s best interests. If, however, the non-custodial parent has experience raising a newborn child, then it might not be reasonable to ask for supervised visits.
The moral of the story is that what a custodial parent requests at the beginning of the case should not be based on emotions, it should be based on what is best for the child. The Judge from the beginning of the case is watching very closely and is judging both parents for the purpose of making a determination about custody and visitation. If it appears to the Judge that a parent is not making decisions in the child’s best interest, this can be detrimental to their case. In the worst case scenario, a custodial parent can lose a custody trial because the Judge makes a finding that that parent interfered with the non-custodial parent’s visitation.
My office provides representation to individuals in custody and custody matters. I am located in Brooklyn, New York City and I represent mothers and fathers in all five boroughs. I have been practicing for over ten years. Please call me at 718-864-2011.