Child Visitation & Parenting Arrangements

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 33 years of experience suggests that the first step in any custodial analysis is the determination of each parent’s ability to address the practical needs of the child on a day-to-day basis.

For example, if one parent is working full-time, will he or she be available to transport a child to after school activities? Will that parent be able to disengage from work on a moment’s notice to address a health emergency at school? Among many others, these are the kinds of questions that should be addressed with a client before negotiations or litigation is undertaken concerning the establishment of a parenting time arrangement or visitation schedule.

It is important for the lawyer and client to set practical goals for parental contact with the child and “to avoid biting off more than one can chew” as a result of the physical separation of the parties.

These are typically emotionally charged discussions because a parent may not want to give up ground to the other parent as far as time with the child is concerned. The attorney should strive to assist the client in charting a reasonable course through this potentially divisive issue to avoid protracted litigation.

Physical custodial schedules are strictly calendar based; the amount of time available is finite as there are so many hours in a day, month or year. Absent compelling circumstances, the available time with the child in a given year is apportioned between the parents (albeit not necessarily equally). Parties can agree on a schedule which is based upon future agreement, but those schedules are not recommended, as they are virtually unenforceable. In those instances, litigation is often necessary to firm up a parenting schedule if one parent unreasonably refuses to permit parental contact. Fixed custody and visitation schedules are typically clearly defined.

A parent who flaunts and violates his or her Court Ordered visitation schedule may be subject to both civil and criminal penalties. The criminal penalties for a visiting parent who violates a Court Order are described in New York Penal Law 135.45 and 135.50.

Joint legal custody is a complex area. It differs from visitation as the parent with visitation rights has no input into decisions affecting the child unless an agreement or Court Order clearly articulates those rights. A visiting parent can have a substantial say in the upbringing of a child, but those rights require an agreement conferring those rights. When parties initially agree to joint custody, they will have to craft and work out the details of how they will interact with each other to make decisions concerning the child. They will have to decide if one parent, or the other, will make the final decision if there is no consensus. The parties should try to agree on a decision-making process. In some instances, third parties are employed to assist in breaking deadlocks, although the Courts in New York have frowned upon delegating final decision-making responsibility to health care professionals, parent coordinators or other third parties. Parties should strive in all joint legal custody arrangements to address as many topics as possible and clearly define the methodology for breaking a decision-making deadlock (should one arise in the future). If there are no provisions concerning who makes the final decision, there is prior case law in New York which gives final decision-making ability to the parent with whom the child primarily resides. Making incomplete joint custodial arrangements can be a recipe for trouble and high future litigation costs if parents are unable to cooperate in making decisions concerning the child.

New York law does not favor joint custodial arrangements. If litigation is required because one party wants joint custody and the other does not, then great care, effort and energy must be devoted to the preparation of a case if there will be any chance of success. While more and more New York judges are pre-disposed to ordering joint custodial arrangements, the law on the books still discourages such results. Accordingly, a skilled and experienced attorney is a necessity for the purpose of evaluating the chances of success where there is a dispute over decision-making rights concerning the child.

There are a few final points which important considerations in these matters are. All custody and visitation arrangements in New York expire upon the eighteenth birthday of the child. In addition, if there is litigation between the parties on custodial issues, the rules differ in the Supreme Court and the Family Court concerning payment of the fees of the attorney for the child. In most cases, attorneys are appointed to represent the interests of the child. In the Supreme Court, the parties pay for the cost of the attorney for the child. In the Family Court, the State provides the attorney for the child without cost to the parties. In both Courts, outside professionals, including psychiatrists, psychologists and social workers can be ordered to evaluate the parties and the children. The parties must pay for the costs of these experts in virtually all cases.

Accordingly, before one decides to wage war in Court on these issues, a discussion concerning anticipated fees and costs is warranted. An out-of-Court settlement can save many, many thousands of dollars in fees and is always preferable to having a judge decide these issues. From my point of view, the judge’s role is to decide these issues if the parties cannot do so themselves. Absent compelling circumstances, an attempt to reach a reasonable settlement of these issues should be attempted before any litigation is undertaken.

I take great pride in drafting custodial and visitation agreements.
In addition, I have tried the most difficult custody cases, with positive results for the most part.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice for over 30 years. Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290.

My Long Island office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road in Garden City, Nassau County, NY.