Many fathers face significant obstacles to enjoying their child custody rights. Often, their co-parent makes it challenging to spend meaningful time with their child or to exercise their joint legal rights as a parent. The other parent’s infringement on the non-custodial father’s rights ultimately threatens the child’s stability.
If you’re a father, you already know the importance of being able to parent your child in accordance with your values. You certainly do not want the added stress that comes with faulty child custody arrangements. That’s where our law firm comes in. We advocate for the rights of fathers in New York and New Jersey, advocating for custody agreements that protect men’s interests in family law cases.
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Types of Child Custody
All fathers need to know about the two types of custody available in New York and New Jersey, and how they can be used, so here they are:
- Legal custody: Legal custody refers to the responsibility of the decision-making portion of parenting. Persons who exercise legal custody over a child have the right to make all major decisions related to the child’s Health, Education, General Welfare, and the religious upbringing of the child. Examples of major decisions include selecting doctors, determining whether a child would have surgery or be vaccinated, selecting a child’s school, and the like.
- Physical custody: The parent with whom the child primarily resides has physical custody..
How Custody Types Can Be Exercised
Joint (shared) custody: There are two types of “joint custody”:
- Joint Physical Custody: In these situations, the parents have equal parenting time with the child. This can take the form of week-on, week-off parenting, split week custody schedules, such as 2-2-3 day plans, etc.
- Joint Legal Custody: In these situations, the parents share equal decision-making authority. This can take various forms, such as “spheres of influence” in which one parent decides on one aspect of the child’s life, such as education or healthcare. This is particularly common when one parent has special knowledge of a particular subject, for instance, when a parent is a teacher or doctor. There can also be joint legal custody with final decision-making to one parent, in which the parties have the obligation to consult with each other before making a decision, but one parent has the final say.
Sole custody: In sole custody arrangements, only one parent has control over all aspects of the child’s life.
- Sole Physical Custody: In these situations, the child lives primarily with one parent. This can be subject to a parenting time plan which provides for the “non-custodial” (Parent of Alternate Residence) parent to have scheduled time with their child. However, that time would be only a fraction of the entire parenting plan, which would afford the majority of the time-sharing to the sole physical custodial parent (Parent of Primary Residence).
- Sole Legal Custody: In this instance, only one parent has the right to make major decisions regarding the child. There are instances where that parent must “consult” with the other, but has final decision-making and need not necessarily consider the other parent’s input.
How Do Courts Decide Who Gets Child Custody?
In deciding child custody, the court must determine the child’s best interests. This obligation supersedes what the parents want and even what the child wants. To decide the child’s best interests, judges must look at a number of different factors. These include:
- Which parent has been the child’s primary caregiver since birth;
- The age and health of the parents;
- The relative parental skills of both parents;
- The parents’ work schedules and other matters that may affect their ability to spend quality time with the child;
- Any evidence of domestic violence, abuse, or neglect of the child;
- Any evidence of drug or alcohol abuse;
- Which parent can best provide a safe and stable environment for the child;
- Which parent is able to care for the child’s special needs, if there are any;
- Any communication or cooperation problems between the parents; and
- The child’s preferences, depending on their age.
Who Has Custody of a Child if There is No Court Order?
In the absence of a court order, both parents named upon the child’s birth certificate have equal rights to the child’s physical and legal custody. This means they should be cooperating with each other to ensure the child’s needs are met, to care for the child, and to spend time with the child.
Of course, in practice, where there is conflict between the parents, parenting rarely works for very long without the court’s involvement. The parents may begin to disagree over each other’s parenting skills and decisions. One parent may no longer respect the other parent’s time with the child. Or a parent could withhold custody or visitation altogether. Eventually, the parties will likely have to ask a court to intervene to protect their parenting time and rights.
Can Child Custody Be Modified?
Child custody can be modified, and the exact way to do so usually takes one of two approaches. If the parents can come to an agreement as to how they should modify custody, they can draft a proposed new parenting agreement and submit it to the court. If the court reviews the proposal and believes it would be in the child’s best interests to modify custody, then the judge will enter it as a consent order.
If you and the other parent wish to go this route, you may find mediation helpful. A neutral third-party mediator can facilitate discussions between you and the other parent and try to reach a settlement. This is especially valuable if you agree in general that a change is needed but cannot agree or figure out the details. Our fathers’ rights lawyer can represent you during mediation.
However, if you and the other parent cannot agree on whether or how to modify child custody, then you will need to ask the court for assistance. To do so, you will need to argue that there has been a substantial change of circumstances, which warrants a review of the child’s best interests. These may include:
- The other parent abusing or neglecting the child or subjecting the child to domestic violence:
- The other parent developing a drug or alcohol abuse problem:
- Communication problems between you and the other parent;
- The other parent actively interfering with custody or your relationship with the child:
- The other parent repeatedly violates the existing custody order:
- Changes in either your schedule or the other parent’s schedule affecting parenting time:
- A proposed or actual relocation of one parent to another state;
- The child’s preference;
- Impact of the current schedule on the child; etc.
To ask the judge to modify child custody, a parent must file a petition or motion with the appropriate court. This document will explain the basis for the request, such as one of the reasons listed above. It will then be served on the other parent, and the court will schedule a hearing to consider the request. After hearing arguments and reviewing evidence, the judge will decide whether to modify custody and issue a new order replacing the previous one.
What Happens if a Custody Order is Violated?
If the other parent violates the custody order, you will need to ask the court to enforce it. Courts have various ways to do so, including:
- Affording “make-up” parenting time to the parent whose rights were violated;
- Modifying the current order to prevent future violations and allow more parenting time to the other parent;
- Requiring the violating parent to pay the other parent’s court costs and attorney fees; or
- Holding the violating parent in contempt of court, which may entail fines and even jail time (please note that jail time for these matters is quite rare in New York and New Jersey).
Judges take repeated custody violations seriously, and you need to keep a record of violations to demonstrate a pattern on the other side’s part. If your co-parent has violated a custody or parenting time order, talk to us about enforcing it. On the other hand, if you have been accused of violating the order or you believe you will not be able to comply with it, it’s time to contact a child custody lawyer for fathers.
How Our Child Custody Lawyers Can Help
Dow Divorce Law represents fathers who are struggling to enjoy their child custody rights or experiencing problems with the other parent. When you retain us to represent you, we get to work by:
- Filing and serving court petitions: Whether to establish or modify child custody, or to enforce orders, we file and serve all paperwork in accordance with the appropriate court’s rules.
- Negotiating custody and visitation: Most custody and visitation matters can be settled without trial. We will represent your interests, explain the legal meaning of specific terms, and help you decide whether to settle or go to court.
- Representing fathers in court: If a court proceeding is necessary, then we will advocate for your parental rights and the child’s best interests. This includes obtaining and presenting relevant evidence, producing witness testimony, and applying our legal experience and knowledge.
Although having an attorney can never guarantee a particular outcome, it can make a large difference. A skilled attorney will not only understand the custody laws of New York and/or New Jersey, but will also know the relevant court rules, such as those pertaining to civil procedure, discovery, and evidence. The right lawyer can effectively negotiate a fair settlement, and, if necessary, will take your case in front of the judge and seek the best possible result. Our firm is committed to effective representation of our family law clients.
Child Custody Lawyer For Fathers: FAQs
When does child custody end?
Since “child” means any person under the age of 18, once the child reaches 18 they are no longer subject to the custody jurisdiction of the courts. The law recognizes them as adults at this point. This age is different for child support purposes.
What’s the difference between physical custody and visitation (parenting time)?
“Custody” and “visitation” are terms of primary and secondary degree. “Physical Custody” (physical) refers to which parent the child primarily lives or spends most time with. “Visitation” is secondary to this and refers to the schedule of time that the other parent will have with the child.
Who has to pay child support when parties share joint physical custody?
Generally, the higher-earning parent pays child support to the lower-earning parent, yes, even if the parents have an equal amount of time with the child.
Speak With a Child Custody Attorney Who Advocates for Fathers
When fathers face custody challenges, Dow Divorce Law steps up. Let us review your current custody arrangement with the other parent and then get to work crafting a legal plan. We provide personalized support at every step and will apply our experience to develop a father-focused solution for you. Start by contacting us to schedule your strategy session today.
Contact us for representation in a child custody matter.
