General Divorce, Child Custody, And Orders Of Protection
There are several ways of obtaining an order of protection. One way is by filing for an order of protection with the family court on your own. The other way is by getting an order of protection through the criminal process. Criminal orders of protection are obtained through the district attorney and/or police department. In New York, both avenues can be pursued. In Criminal court, there is a higher burden of proof to obtain an order of protection. You’re not the person who’s bringing the charges, you are the DA’s witness. The district attorney may very well decide that a case is an evidence-based prosecution, which means that even if you change your mind and decide not to request an order of protection, the district attorney may, depending on the seriousness of the case and evidence available, decide to pursue the order of protection anyway, that might not be the outcome you want.
In family court, you (the petitioner) are the person who comes forward and your attorney’s office files the allegations for you. At that point, you will have to prove the allegations, but the burden of proof is much lower; it is not one of beyond a reasonable doubt as it is in criminal court, but a mere preponderance, this means that it is more likely that something happened than didn’t happen. In explaining this to clients over the years, I have used a percentage analogy and a football analogy; in family court, you only have to prove your case by 51%, or in football, get the football over the 50-yard line.
This can make it easier to get an order of protection in family court, assuming the allegations make out a family offense, which indicates that the parties must be related by consanguinity or affinity. This include spouses, significant others, exes, and people who share a blood relation. If you are not sure whether or not it falls into that category, it’s time to speak with an attorney.
A third way of obtaining an order of protection In New York is through an integrated domestic violence (IDV) court, which is designed to handle family law cases and criminal cases arising from the same household or family. The purpose is to consolidate cases into one location rather than have the parties attend multiple court dates in multiple courthouses. Orders of protection can be granted through this process the same way they would be granted in criminal court or family court. It is actually possible to have both a family offense/family court and a criminal court order of protection case in criminal court.
Oftentimes, a person will start an order of protection, involving a family offense in Family Court and a custody petition in the family court, and if one of the person involved gets arrested for violating the order of protection or some other crime, the case can be in the Integrated Domestic Violence part. There have also been instances where the police and prosecutor filed an order of protection in criminal court, and the case was transferred from either criminal or family court to an IDV court.
The fourth way of obtaining an order of protection is through the Supreme Court during a divorce case, but this is uncommon.
What Is Different About The Way You Handle Child Custody & Support Cases Compared To How General Family Law Attorneys Do?
Being involved in a Family court case is a very different experience than any other types of court case, including the Supreme Court where divorce cases are held. After a court order dispute is over, many (if not all) of the issues that occur in custody and visitation cases may at some point be issues that need to be resolved in a divorce. The only thing that family court cannot do is actually grant the divorce, which means all of the issues contained within a divorce case may also happen in family court, including custody and child support issues.
There are several types of custody in New York. Sole custody (i.e. sole legal and sole physical custody) is where a parent who has sole custody makes all of the decisions regarding the child, and the child resides with that parent. There is also joint legal custody, where one party is considered the physical custodian and the other party participates in decision-making with the custodial parent.
The legal decision-making can be done in several ways. It is ideal if the parties are able to come to an agreement. If they can’t come to an agreement, they can turn to a third party to mediate the dispute, or one of the parties may have been given the final say on a particular issue. For example, if the parties cannot agree on a school-related decision, they could turn to the educator at the school and choose to follow that recommendation. Another possibility would be for the parties to practice communication based on good faith, meaningful consultation with one another to try to work out an agreement. In about 90% of the cases I see, the religious component of decision-making has already been worked out. I generally deal with issues involving where the child will live, as well as education and medical-related decisions.
Minor day to day decisions generally don’t require input from the other party. For example, if the child has the common cold, the parent wouldn’t necessarily need to call the other parent to ask which doctor the child should be taken to. If, however, there is a serious accident and a decision must be made about where to have a necessary non-emergency surgery done, that would be considered a major decision.
There are three main spheres of influence: education, medical, and religion. In some cases, parties will agree to let the other parent have the final say on a matter within a particular sphere of influence, assuming a decision cannot be reached. For example, parties might agree that one parent can have the final say when it comes to education, and the other parent can have the final say when it comes to medical care.
Although the law in New York is designed around the words “custody” and “visitation,” I’m very cognizant of the fact that these matters are more about parenting schedules that work for both parties. More often than not, the child will go back and forth between their mother’s house and father’s house. I have a problem with the word visitation simply because it doesn’t seem to carry the same connotation as what the non-custodial parent does. Parenting time applies to both parties, because while the children are with one parent, they’re not with the other. Parenting time may be more in line with what a client may ant in a custodial arrangement.
Sometimes the minutia of a custody case will have to be addressed, such as where the child will be picked up and dropped off by each parent. For example, at the home of one of the parties, a local store or a library. As opposed to a precinct, I prefer public locations (e.g. train stop, bus stop) or curbside at the home of each parent for pickup and drop-off locations. I believe they are more beneficial to the child. I often remind clients that the relationship they establish with their former partner will be emulated by their child in that child’s future relationships. For example, if a father is mean and disparaging to his ex-wife and mother of his child, their child will develop a negative perception about how men should treat women. Unfortunately, this happens for many social situations.
Financial matters within child custody and visitation cases are reserved for a support magistrate. Often, it can be very frustrating when a parent fails to pay child support but still insists on seeing their child. However, child support and visitation are not connected, which means even if a parent fails to make child support payments, they will not be barred from seeing their child. It is also true that just because someone pays child support, they are entitled to see their child beyond what the visitation agreement dictates or in some cases, at all. Further, a parent who is paying child support doesn’t have the right to determine how the money is spent. To explain this to clients, I remind them that just because they are paying child support, does not mean that the other parent is not supporting the child; the custodial parent is also spending money on the child as a result of caring for the child the majority of the time.
It can be very difficult to separate some of the expenses for which child support payments are used. For example, no one is going to itemize portions of the groceries or the cost of rent for the child separately. This might become an issue in certain cases where a parent questions the other parent’s use of the money, perhaps by pointing out that the child hasn’t had a haircut or is always wearing dirty clothes during visitation. Some of these issues trickle back into issues of custody and visitation because they involve considerations about where the child’s clothing will be on the weekends and who will be responsible for making sure that the outfits are returned after visitation each week. While it’s not always possible, it may be best for the child to have belongings in both houses so that they do not have to pack a bag every time they visit the other parent. You don’t carry work supplies to and from your office, do you?
Parents must also be very conscious of the fact that there are certain things that may affect co-parenting responsibilities. For example, if the child is taking a regimen of antibiotics that’s going to last for 10 days, then the other parent will need to know that they need to administer that medication during their parenting time with the child.
One possible sticking point in custody and visitation cases is actually what holidays or special events (e.g. birthdays, a family reunion, Halloween, Easter) each parent is entitled to have with the child, or how much of each summer the child will have with each parent. When a child is young, it can be relatively easy to manipulate the schedule in a way that appeases both parents. Once a child becomes of school age, it may be more difficult due to summer plans, summer camp, or the need for childcare, essentially their school schedule dictates yours. Welcome to the wonderful world of parenting.
Depending on the circumstances, it might make more sense for one parent to have the child a certain portion of the summer. Usually, a notification provision is an agreement. It states that each party must give a certain amount of notice to the other party about a change in schedule. This is where the ability to co-parent comes into play. If parents do not get along well with each other, then the agreements may need to be more specific.
Settling a case allows for the avoidance of expensive, emotional, and lengthy court proceedings. It is also generally in the best interests of the child, since court proceedings may require the child to be appointed an attorney and interviewed by licensed social workers or psychiatrists. We are prepared for traditional high contest litigation when it is absolutely necessary, but I believe it is to everyone’s benefit to resolve cases favorably for both sides.
For more information on Divorce, Child Custody And Orders Of Protection, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 737-9669 today.
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