If I Have Sole Custody, Do I Have to Allow Visitation?

Having sole custody of a child can give one parent primary authority over important decisions, but it does not always mean the other parent is completely removed from the child’s life. Custody arrangements in New York are structured to prioritize the child’s best interests, which often includes maintaining a connection with both parents. However, visitation rights can vary depending on court orders, parental agreements, and specific circumstances that may impact the child’s well-being. Understanding how these factors influence custody and visitation can help parents avoid legal complications and ensure that their child’s routine remains as stable as possible.

If you are dealing with a custody arrangement and are unsure about how visitation laws apply to your situation, consulting with a knowledgeable Manhattan child custody and visitation lawyer can provide the clarity you need. The Law Office of Richard Roman Shum, Esq. offers legal guidance to parents who want to protect their rights while complying with New York custody laws. Whether you need help enforcing a visitation order, modifying an existing arrangement, or addressing concerns about co-parenting, legal support can make a difference. Call (646) 259-3416 today to discuss your case and explore your legal options.

What Does Having Sole Custody Mean in New York?

Custody in New York refers to the legal responsibility for a child’s care and upbringing. It is a crucial aspect of family law, as it determines who has the authority to make important decisions for the child and where the child will reside. 

In New York, sole custody refers to an arrangement where one parent is granted exclusive rights regarding their child. This encompasses two primary aspects:

• Legal Custody: The authority to make significant decisions about the child’s upbringing, including matters related to education, healthcare, and religious instruction. When a parent has sole legal custody, they have the exclusive right to make these major decisions without requiring the other parent’s input.
• Physical Custody: Determines where the child resides. A parent with sole physical custody has the child living with them the majority of the time and is responsible for the child’s daily care and supervision. The non-custodial parent may be granted visitation rights, allowing them to spend time with the child, but the child primarily resides with the custodial parent.

Visitation Rights of the Non-Custodial Parent

Visitation, also known as parenting time, allows a parent who does not have physical custody to maintain a relationship with their child. In New York, courts generally grant the non-custodial parent the right to frequent and meaningful visitation unless there is evidence that it would be harmful to the child.

Standard Visitation Arrangements

If both parents can communicate effectively and agree on a visitation schedule, they have the flexibility to create an arrangement that suits their child’s needs and their respective schedules. When parents cannot agree, the court will impose a schedule based on the best interests of the child.

Typical visitation schedules for school-aged children include:

• Every other weekend with the non-custodial parent
• One overnight or dinner visit during the week
• Alternating school holidays between parents
• Extended visitation during the summer, often for a week or more

For younger children, visitation may involve shorter but more frequent visits, sometimes without overnight stays. In cases where parents live far apart, the court may adjust the schedule to accommodate longer but less frequent visits, such as extended time during holidays and school breaks.

Limitations on Visitation

While visitation is generally a right, courts may impose restrictions in situations where unrestricted access is not in the child’s best interests. The court may limit visitation due to concerns such as a history of domestic violence, substance abuse, or unsafe living conditions. When limitations are necessary, the court may order:

• Supervised visitation – A neutral third party is required to monitor visits when there are concerns about the non-custodial parent’s ability to provide a safe environment for the child.
• Therapeutic supervised visitation – A mental health professional supervises visits to evaluate and support the non-custodial parent’s relationship with the child. This is often ordered when the parent’s behavior or parenting skills require improvement.
• Neutral place of exchange – If there is a risk of conflict between parents, the court may require that the child be exchanged at a neutral location, such as a police station, school, or library.
• Monitored transfer – In cases where direct contact between parents may be problematic, the court may require the exchange to take place under the supervision of a neutral third party.

If the non-custodial parent poses a significant danger to the child, visitation may be denied entirely, though this is rare. Courts generally try to preserve the parent-child relationship whenever possible.

Common Misconceptions About Sole Custody and Visitation

Myth: “Sole Custody Means I Can Decide If Visitation Happens or Not”

Having sole custody does not give a parent the right to unilaterally deny court-ordered visitation. Sole custody only grants one parent decision-making authority over major aspects of the child’s life, such as education, healthcare, and where they live. However, if the court has granted the non-custodial parent visitation rights, those visits must be honored unless a judge modifies the order. Failing to comply with a visitation order can lead to legal consequences, including contempt of court, fines, or even modifications to custody arrangements. If there is a concern about the child’s safety, the custodial parent must petition the court for a modification rather than making the decision independently.

Myth: “Sole Custody Cuts the Other Parent Out of the Child’s Life”

While sole custody means one parent has primary authority over major decisions, it does not eliminate the other parent’s involvement. Courts generally recognize that maintaining a relationship with both parents is in the child’s best interest unless there is a compelling reason to limit contact. In most cases, the non-custodial parent still has the right to regular visitation, even if they no longer have decision-making authority. Sole custody does not automatically prevent the other parent from participating in the child’s life or having a meaningful relationship with them.

Myth: “If There’s No Court Order, I Don’t Have to Let the Other Parent See the Child”

Without a formal custody or visitation order, both parents have equal rights to the child. This means that one parent cannot unilaterally restrict the other’s access without legal justification. If a custodial parent prevents the other parent from seeing the child, the non-custodial parent has the right to file a petition for visitation in Family Court. Courts generally grant visitation unless there is evidence that it would harm the child. For parents concerned about safety or other issues, the correct course of action is to seek a formal order from the court, rather than independently restricting access.

Myth: “I Can Deny Visitation If the Other Parent Isn’t Paying Child Support”

Child support and visitation are separate legal matters. A parent cannot withhold visitation as a way to enforce child support payments. Even if the non-custodial parent is behind on payments, they still have the legal right to see their child as outlined in the custody order. Likewise, the non-custodial parent cannot refuse to pay child support simply because they believe they are not getting enough time with the child. If a parent is not meeting their financial obligations, the appropriate action is to pursue enforcement through the court, not to interfere with visitation.

Myth: “If My Child Doesn’t Want to Go on Visits, I Can Skip Them”

Court-ordered visitation must be followed, even if a child expresses reluctance or resistance. Parents are expected to encourage and facilitate visits in good faith. If a child refuses to attend visits on a regular basis, the custodial parent should try to understand the reasons behind the resistance and address any concerns. However, they cannot simply stop visitation without court approval. If a child has strong objections, particularly as they get older, the appropriate step is to petition the court for a modification of the visitation order rather than making unilateral decisions. Until a judge officially modifies the arrangement, both parents must comply with the existing order.

Situations Where Visitation Can Be Denied or Restricted

While courts generally uphold the right of a non-custodial parent to have visitation, there are circumstances where restrictions or denials may be necessary to protect the child’s well-being. The guiding principle remains the best interest and safety of the child. 

• Documented Abuse or Violence: Courts may deny or restrict visitation if a parent has a history of physical, sexual, or emotional abuse. Evidence such as police reports, restraining orders, or CPS findings can support restrictions, including supervised visitation or full suspension if the risk is severe.
• Substance Abuse Problems: If a parent has a serious drug or alcohol issue that endangers the child, visitation may be supervised or suspended. Courts often require proof of sobriety, such as drug tests or rehab completion, before reinstating parenting time.
• Severe Neglect: If a parent fails to provide basic care, including food, medical attention, or proper supervision, visitation may be restricted. CPS reports, medical records, or unsafe living conditions can serve as evidence.
• Parental Abduction Risk: If a parent has threatened to take the child unlawfully, courts can restrict visits or require supervised exchanges. Additional measures may include surrendering passports or prohibiting out-of-state travel.
• Parental Alienation or Toxic Behavior: If a parent manipulates or alienates the child against the other parent, courts may intervene. Possible actions include therapy, supervised visitation, or structured parenting plans to prevent harm to the child’s emotional well-being.
• Criminal Activity or Incarceration: A parent engaged in criminal behavior, especially violent or drug-related offenses, may face visitation restrictions. If incarcerated, visitation depends on the nature of the crime and rehabilitation efforts after release.

If a parent faces concerns about the other parent’s ability to provide a safe environment, consulting with an experienced child custody and visitation attorney and seeking a formal modification order is the appropriate course of action. Taking matters into one’s own hands by denying visitation without court approval can lead to legal consequences, including contempt of court or even a change in custody arrangements.

Situations Where Visitation Can Be Denied or Restricted	Reason for Restriction	Possible Court Actions
Documented Abuse or Violence	History of physical, sexual, or emotional abuse, supported by police reports or restraining orders.	Supervised visitation or full suspension of parental visits.
Substance Abuse Problems	Drug or alcohol addiction that endangers the child.	Supervised visits, mandatory drug tests, or rehab completion required for reinstatement.
Severe Neglect	Failure to provide basic care, medical attention, or supervision.	Restricted visitation or supervised parenting time.
Parental Abduction Risk	Threats or attempts to unlawfully take the child.	Supervised exchanges, passport surrender, or travel restrictions.
Parental Alienation or Toxic Behavior	Manipulating or alienating the child against the other parent.	Therapy, structured visitation, or supervised parenting time.
Criminal Activity or Incarceration	Engaging in illegal activities, especially violent or drug-related crimes.	Visitation restrictions depending on rehabilitation efforts.

How to Modify a Visitation Order

Circumstances can change over time, making an existing visitation order no longer practical or appropriate. In New York, either parent can seek a modification of a custody or visitation order, but they must demonstrate a substantial change in circumstances that impacts the child’s best interests. Courts do not modify orders lightly, so the requesting parent must present clear and compelling evidence supporting the need for a change.

Valid Reasons for Modification

A parent seeking to modify visitation must show that something significant has changed since the last order was issued. Valid reasons may include a decline in the non-custodial parent’s ability to provide a safe environment, such as new instances of abuse, substance abuse relapse, or criminal activity. 

On the other hand, a non-custodial parent may request expanded visitation if they have successfully completed a rehabilitation program, resolved prior concerns, or moved closer to the child. Other factors that could justify a modification include the child’s changing needs, a parent’s relocation, or repeated violations of the existing order. Courts will not modify an order simply because a parent dislikes the arrangement; there must be a meaningful change affecting the child’s well-being.

Filing a Petition for Modification

To initiate the process, the requesting parent must file a Petition for Modification of an Order of Custody/Visitation in Family Court. The petition should clearly state the requested change and the reasons for it, supported by any available evidence. If the request involves allegations of abuse or neglect, supporting documents such as police reports, medical records, or witness statements may be necessary. If the modification is due to a scheduling conflict or a change in the child’s needs, evidence such as work schedules, school records, or testimony from relevant professionals may help strengthen the case.

Court Hearing and Decision

Once the petition is filed, the court will schedule a hearing where both parents can present their arguments. Each party may submit evidence and call witnesses, including family members, counselors, or professionals who can provide insight into the child’s well-being. The judge will evaluate factors such as the child’s current living situation, any new concerns regarding safety or neglect, the child’s own preferences (if they are old enough to express them), and the overall stability of each home. 

If there are serious concerns about harm, the court will prioritize the child’s safety when making a decision. If the request is based on scheduling or practical issues, the judge will aim to balance both parents’ involvement while ensuring the arrangement remains in the child’s best interests.

Following the Existing Order Until Modification is Approved

Until the court issues a new order, both parents must continue following the current visitation schedule. A parent cannot decide on their own to deny or change visitation, even if they believe the change is necessary. If there is an immediate risk to the child, the parent can request an emergency hearing or a temporary order to suspend visitation, but only the court has the authority to approve such changes. Taking unilateral action can result in legal consequences, including contempt of court or a change in custody arrangements.

After the Modification is Granted or Denied

If the court approves the modification, a new order will be issued detailing the updated visitation schedule or restrictions. The changes may include supervised visitation, adjusted parenting time, or a suspension of visits, depending on the circumstances. Parents should review the order carefully to ensure compliance. If the modification request is denied, the original visitation order remains in place, and both parents must continue following it. In some cases, the court may offer a compromise, such as transitioning from supervised to unsupervised visits over time or setting conditions for future modifications.

Best Practices for Co-Parenting Communication

Effective communication is essential for successful co-parenting, even when one parent has sole custody. Keeping interactions focused on the child’s well-being helps reduce conflicts and makes visitation arrangements smoother. By following best practices, parents can create a more cooperative environment that benefits the child and minimizes stress.

Keep It Child-Focused

All discussions should prioritize the child’s needs, not past relationship issues or personal grievances. Conversations about visitation should stick to factual details, such as pick-up times, locations, and necessary items for the visit. Avoid emotional or accusatory language, as this can escalate tensions.

Be Timely and Punctual

Respecting the visitation schedule by arriving on time for drop-offs and pick-ups helps maintain stability for the child. Consistently being late or canceling visits can cause frustration and may be used as evidence in court. If occasional delays happen, communicating in advance and being patient with reasonable disruptions can prevent unnecessary conflict.

Do Not Speak Negatively About the Other Parent in Front of the Child

Criticizing the other parent can harm the child emotionally and may also be viewed negatively by the court. If the child expresses concerns about the other parent, listen supportively but remain neutral. Encouraging a healthy relationship with both parents helps foster emotional stability.

Have a Detailed Parenting Plan

A structured parenting plan that covers schedules, holidays, medical updates, and school communication can reduce confusion and conflict. Even with sole custody, keeping the other parent informed about major developments, such as new extracurricular activities or doctor appointments, promotes a smoother co-parenting dynamic.

Be Flexible and Fair (Within Reason)

Life circumstances change, and occasional schedule adjustments may be necessary. If the other parent requests a reasonable one-time change, consider accommodating it, especially if it benefits the child. However, consistent last-minute changes or disruptions should be addressed to maintain structure and predictability.

Personalized Legal Guidance from the Law Office of Richard Roman Shum, Esq.

Understanding how sole custody and visitation rights work in New York is essential for making informed decisions that protect both your rights as a parent and your child’s well-being. While sole custody grants primary authority over major decisions, visitation is often determined separately, and failing to follow a court order can have legal consequences. If concerns arise about the safety of visitation or the need for modifications, taking the right legal steps is crucial.

At the Law Office of Richard Roman Shum, Esq., we help parents handle challenging custody and visitation issues with clear, strategic legal support. Whether you need assistance enforcing a visitation order, requesting modifications, or addressing disputes, our firm is here to provide guidance tailored to your specific case. Contact us at (646) 259-3416 to schedule a consultation and take the next steps toward securing the best possible outcome for you and your child.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/if-i-have-sole-custody-do-i-have-to-allow-visitation/

Initiating Divorce: A How-To Guide

Divorce is one of the most challenging decisions a person can face in their life. It’s a pivotal moment, marking the end of a chapter and the beginning of another. The process can bring emotional challenges, legal matters, and financial concerns. Consequently, the way you approach the subject and communicate your decision to your spouse can significantly impact the process. It’s crucial to consider several factors to ensure you handle the situation with care, respect, and dignity.

The process of asking for a divorce can be daunting, and it’s crucial to seek legal advice to get through this journey. An experienced New York divorce attorney can offer valuable advice on how to communicate your intentions to your spouse effectively and tactfully. At the Law Office of Richard Roman Shum, Esq, our team of Manhattan divorce lawyers can guide you through the legal proceedings, helping you understand your rights, responsibilities, and the potential outcomes of different scenarios. We can provide the necessary support and guidance, including strategies for an amicable divorce, to make the process as smooth and straightforward as possible. Call us today at (646) 259-3416 to schedule a consultation.

Understanding the Divorce Process in New York

In New York, either spouse can file for divorce. The state recognizes both fault-based and no-fault divorces. A no-fault divorce can be filed when one or both spouses claim that the marriage has been irretrievably broken for at least six months, whereas fault-based divorce can be sought on grounds including adultery, cruelty, abandonment, or imprisonment. New York divorce laws also include provisions for equitable distribution of marital property, which means the court divides marital property in a way that is fair but not necessarily equal.

Residency Requirements in New York

Before filing for divorce in New York, it’s important to understand the state’s residency requirements. At least one of the following points has to be satisfied to meet the requirement:

• At least one spouse must have been a New York resident for a continuous period of two years before filing.
• If the couple was married in New York, and at least one spouse has lived in the state for a continuous year, they can file for divorce.
• If both spouses are residents of New York at the time of filing, and the grounds for the divorce occurred in the state, they can file without regard to the length of residency.

These residency requirements ensure that New York courts have jurisdiction over your case and can make legally binding decisions regarding your divorce.

Types of Divorce in New York

Divorce proceedings can be categorized into two primary types: uncontested and contested. Each type represents a different pathway to the dissolution of a marriage, carrying its own set of characteristics, requirements, and potential challenges.

Uncontested Divorce

An uncontested divorce is when both parties agree on all aspects of the divorce, including property division, child custody, and spousal support. This is typically a smoother and quicker process as there are no disputes for the court to resolve. Parties involved in an uncontested divorce often work with their respective attorneys to draft a settlement agreement, which is then submitted to the court for approval. Often, no court appearances may be required. 

Contested Divorce

A contested divorce, on the other hand, is when the parties cannot agree on one or more issues, and the court must decide. These divorces are often more challenging and time-consuming. They may require a trial where both parties present evidence and arguments for their desired outcomes. It’s essential to have a knowledgeable Manhattan divorce lawyer to represent your interests and guide you through the process.

Understanding the divorce process in New York is crucial for anyone contemplating divorce. From residency requirements to the different types of divorce, each aspect plays a key role in how the divorce proceedings will unfold. A Manhattan divorce lawyer can guide you through it, helping you understand your options and make informed decisions that protect your best interests.

How to Tell Your Spouse You Want a Divorce

Divorce is a difficult topic, fraught with heavy emotions and implications. However, when it becomes inevitable, it’s crucial to approach your spouse with clarity, compassion, and respect. Here’s how to tell your spouse you want a divorce.

• Start by preparing yourself emotionally. Understand that the conversation will be difficult and you may receive a strong reaction. Try to anticipate the emotions that may arise and think about how you’ll handle them. Consider speaking to a counselor or therapist to help navigate your feelings.
• Timing is crucial. Choose a calm, private environment and a time when both of you are not preoccupied or stressed. Do not rush the conversation; ensure you have ample time to talk things through.
• When you start the conversation, be clear and direct about your intentions. Use “I” statements to express your feelings, such as “I feel unhappy” or “I have tried, but I cannot continue”, instead of blaming your spouse. This will help you communicate your feelings without provoking defensiveness.
• While it’s important to be firm about your decision, also show empathy towards your spouse. Understand their feelings and reactions, even if they’re negative. Remember, this news is likely to be as difficult for them to hear as it is for you to tell.
• Avoid getting into the specifics of splitting assets or custody during this initial conversation. This discussion is about your emotional disconnection and the decision to divorce, not about the logistics, which can be discussed later.

Remember, it’s important to maintain respect and compassion throughout the process, despite the pain and difficulties. After all, this person was once your partner in life.

Step	Description
Prepare Emotionally	Understand the emotional difficulty of the conversation. Consider seeking counsel to navigate your feelings.
Choose the Right Timing	Select a calm, private time without distractions. Ensure there is enough time to discuss the matter thoroughly.
Be Clear and Direct	Use “I” statements to express your feelings clearly and directly, avoiding blame to reduce defensiveness.
Show Empathy	Acknowledge and understand your spouse’s feelings and reactions, even if they are negative.
Avoid Logistical Discussions	Focus on expressing your emotional reasons for the decision, not on logistics like asset division or custody.

What Is the First Step When You Want a Divorce? 

The initial step when considering a divorce is to formally file a divorce petition. This legal document is essential to begin the official process of ending a marriage. Regardless of whether both parties agree on the decision to divorce, it is necessary for one spouse to take action and submit this petition to the court.

Filing a divorce petition serves as an official declaration of one’s intention to dissolve the marriage. This document outlines the primary reasons for seeking the divorce and is filed in a family court that has jurisdiction over the matter. The process involves providing necessary personal details about both spouses and their marriage, including the date of marriage, any children from the union, and the specific grounds for the divorce, if applicable.

Once the divorce petition is filed, the court will process the documents and issue a summons to the other spouse, marking the beginning of the legal proceedings. This step is crucial as it legally informs the other party of the divorce action and allows them to prepare for the upcoming legal process.

It is recommended to consult with an experienced divorce lawyer to guide you through filing the petition and to help manage any potential legal challenges that may arise. This professional guidance is vital to get through the legal system effectively and to advocate for your interests throughout the divorce process.

Preparing for a Divorce in New York

Preparation is a key aspect of the divorce process. Ensuring you have all the necessary documentation, a clear understanding of your financial situation, and a well-thought-out plan for any children involved can help make the process smoother and more manageable.

Gathering Your Records for Divorce

The first step in preparing for a divorce process is compiling all the relevant documents. These include:

• Financial records: Tax returns, bank statements, investment and retirement accounts, property deeds.
• Personal documents: Birth certificates, social security cards, and passports for you and your children.

These documents provide a detailed overview of your financial circumstances and are crucial for discussions about property division, child support, and spousal maintenance.

Essential Documents Needed to File for Divorce in New York

When filing for divorce in New York, specific forms are required depending on whether the case is contested or uncontested and whether children are involved. The New York State Unified Court System provides official forms that must be accurately completed and filed with the New York Supreme Court in the county where either spouse resides.

Uncontested Divorce Without Children

For an uncontested divorce without children, the primary forms include:

• Summons with Notice (Form UD-1) or Summons and Verified Complaint (Form UD-1a and UD-2): Notifies the other spouse and outlines the grounds for divorce.
• Affidavit of Plaintiff (Form UD-6): The plaintiff’s sworn statement confirming the divorce details.
• Affidavit of Defendant (Form UD-7): If the spouse agrees to the divorce. If the defendant does not respond, the case proceeds by default.
• Judgment of Divorce (Form UD-11): The final court order ending the marriage.

Uncontested Divorce With Children

If the couple has children under 21, additional forms are required, typically included in the Uncontested Divorce Packet, such as:

• Child Support Worksheet (Form UD-8(3)): Calculates child support obligations.
• Parenting Plan (if applicable): Not required but helpful when parents agree on custody arrangements.
• Qualified Medical Child Support Order (QMCSO) (if applicable): Required if medical support orders are needed for children.

Contested Divorce

If the divorce is contested, meaning the spouses disagree on key issues such as property division, custody, or support, additional forms may be required, including:

• Statement of Net Worth: A mandatory form detailing income, assets, debts, and expenses.
• Request for Judicial Intervention (RJI): Required when a judge’s involvement is necessary.
• Motions and Affidavits: If seeking temporary relief, such as spousal or child support, exclusive residence, or restraining orders.
• Preliminary Conference Forms: Used to schedule court conferences and set case deadlines.

Other Required Forms for All Divorce Cases

Regardless of whether the divorce is contested or uncontested, additional required forms include:

• Certificate of Dissolution of Marriage: Officially records the divorce with the state.
• Notice of Automatic Orders: Prevents either spouse from making significant financial or property changes once the case is filed.

Filing Process and Fees

All documents must be filed with the New York Supreme Court in the county where either spouse resides. The filing fee for an uncontested divorce is at least $335, though additional costs may apply depending on the case. If the divorce is contested and requires court intervention, additional fees may be required for motions or hearings. Individuals experiencing financial hardship may apply for a fee waiver to have court fees reduced or eliminated.

Identifying Marital Assets and Debts

Another critical step in preparing for divorce is identifying and understanding the full extent of your marital assets and debts. Marital assets can include properties, vehicles, investments, retirement accounts, and personal belongings acquired during the marriage. Conversely, marital debts might comprise mortgages, car loans, credit card debts, and other liabilities incurred during the marriage.

It’s important to note that New York is an equitable distribution state, which means that marital assets and liabilities are divided in a manner considered fair by the court, but not necessarily equally. Having a comprehensive understanding of your assets and debts can help you and your attorney negotiate a fair distribution.

Considering Child Custody and Support

If you and your spouse have minor children, considering their future custody and support arrangements is a vital part of the divorce preparation process. New York courts prioritize the best interests of the child when making decisions about custody and support.

Child custody involves decisions about who the child will live with (physical custody) and who will make important decisions about the child’s upbringing (legal custody). Child support, on the other hand, refers to the financial support a non-custodial parent contributes towards a child’s living and education costs.

It’s important to remember that these decisions can have long-lasting impacts on the child’s life. Therefore, it’s advisable to discuss potential arrangements with a competent Manhattan divorce lawyer who can guide you in making decisions that are in the best interest of your child.

Initiating the Divorce Process

Starting the divorce process involves a few key steps. These include choosing the appropriate grounds for divorce, filing the initial legal documents, and serving the divorce papers to your spouse. Each step is an integral part of the process and requires careful thought and planning.

Choosing the Right Grounds for Divorce

The grounds for divorce set the tone for the entire divorce process. They form the basis for the dissolution of the marriage and can significantly influence how smoothly the process unfolds.

Fault-Based Grounds

Fault-based grounds imply that one spouse is to blame for the dissolution of the marriage. In New York, these grounds include:

• Cruel and Inhuman Treatment: To claim this ground, you need to prove specific instances of cruelty that occurred within the last five years. Merely arguing with your spouse or not getting along is insufficient. The cruelty must be severe enough that the plaintiff is in physical or mental danger, and it would be unsafe or inappropriate for them to continue living with the defendant.
• Abandonment: For this ground, the defendant must have abandoned the plaintiff for a duration of at least one year. Abandonment could mean either physically leaving the marital home with no intent of returning, or a refusal to engage in sexual relations with the plaintiff, referred to as “constructive” abandonment.
• Imprisonment: This ground applies when the defendant has been incarcerated for three or more consecutive years. The defendant must have been sentenced to prison after the commencement of the marriage. The plaintiff can claim this ground either while the defendant is still in prison or up to five years following their release.
• Adultery: To assert this ground, the plaintiff must provide evidence that the defendant committed adultery during the marriage. This can be challenging to prove as it requires testimony from someone other than the plaintiff or defendant.
• Divorce Following a Legal Separation Agreement: For this, both the plaintiff and defendant must sign and file a legally valid separation agreement and live separately for a year. The separation agreement must meet certain legal criteria to be considered valid.
• Divorce after a Judgment of Separation: This ground, rarely used and sometimes referred to as a “conversion,” requires the Supreme Court to issue a judgment of separation, after which the married couple must live apart for one year.
• Living apart pursuant to a separation agreement: The couple has lived apart for at least a year according to a legally valid separation agreement, and the spouse who is filing has substantially complied with the terms of the agreement.

No-Fault Divorce

In 2010, New York became the final U.S. state to implement a bona fide “no-fault” divorce law. This now allows any spouse pursuing divorce in New York to assert under oath via a Verified Complaint that their marital relationship has irreparably deteriorated over a minimum period of six months.

This kind of claim is referred to as “irreconcilable differences” in other states. The specifics of these differences can vary case by case, but fundamentally, it implies a six-month period where the spouses have failed to maintain harmony in their relationship.

There’s no legal defense needed against a no-fault divorce claim. However, the divorce will only be granted once all financial matters, including spousal and child support, fair division of marital assets and liabilities, attorney fees, and expenses, along with issues of custody, have been settled.

Selecting the appropriate grounds for divorce is an important first step in the process. The grounds chosen can impact the length, cost, and overall nature of the divorce proceedings. A divorce lawyer can provide valuable advice on which ground is most appropriate for your specific circumstances, considering the nuances of your situation and the potential implications of each choice. They can also help you understand the legal requirements for each ground and guide you through the process of filing for divorce on these grounds.

Filing a Summons and Complaint

The divorce process officially begins when you file a summons and complaint with the court. The summons informs your spouse that you are initiating a divorce action, while the complaint outlines the grounds for your divorce and your requests regarding property division, spousal support, child custody, and child support.

When preparing these documents, it’s critical to be thorough and accurate. Any errors or omissions can potentially delay the divorce process or impact the final divorce judgment. A Manhattan divorce lawyer can help you prepare these documents accurately and efficiently.

Serving Divorce Papers to Your Spouse

After you have filed the summons and complaint, the next step is to serve the divorce papers to your spouse. This is an important step as it formally notifies your spouse of the divorce action and gives them an opportunity to respond.

In New York, divorce papers must be served in person, unless the court grants permission for an alternate method of service. The papers can be served by a professional process server, a friend or relative over 18 who is not involved in the divorce, or by a sheriff or marshal.

Navigating the Divorce Proceedings

Once the divorce process has been initiated, there are several stages that you and your spouse will need to navigate. Each stage carries its own set of challenges, expectations, and legal requirements, making it crucial to understand what each involves.

Responding to a Divorce Summons

If you’re the spouse who has been served with a divorce summons and complaint, your first task is to respond. In New York, you typically have 20 days to respond if you were served personally and 30 days if the papers were served in any other manner.

Your response, or answer, should address each of the statements in the complaint. You can agree or disagree with the statements, and you also have the opportunity to make your own requests regarding property division, alimony, child custody, and child support.

Failing to respond in a timely manner can result in a default judgment, where the court grants the requests of the filing spouse. Therefore, it’s crucial to respond promptly and accurately, ideally with the assistance of a Manhattan divorce lawyer.

Discovery Process in New York Divorce Cases

The discovery process is a crucial phase of the divorce proceedings in which both spouses disclose all relevant information about their finances, assets, debts, and other issues pertinent to the divorce.

This process can involve written questions (interrogatories), requests for documents, depositions (sworn out-of-court testimony), and admissions of fact. It’s designed to ensure both spouses have all the necessary information to negotiate a fair settlement or prepare for trial.

The assistance of a Manhattan divorce lawyer can be invaluable in navigating the discovery process, ensuring that all relevant information is disclosed and that your rights are protected.

Negotiating Settlements

Negotiations are a key part of many divorce proceedings, as they allow spouses to exert more control over the outcome. Successful negotiation depends on a thorough understanding of each party’s rights, financial circumstances, and the best interests of any children involved.

Understanding the Importance of Negotiations

Negotiations during a divorce process hold significant importance due to several reasons. They can control the outcomes, reduce stress, and fast-track the process. Here’s why this stage is crucial:

• Control over outcomes: Negotiating a settlement gives you and your spouse more control over the final terms of your divorce, including property division, alimony, child custody, and child support.
• Less stress: Negotiations can be less emotionally taxing than a full trial.
• Speed: A mutually agreed settlement can often be finalized more quickly than a court-decided divorce.

Key Areas for Negotiation

During divorce negotiations, several key areas need to be addressed. These include property division, spousal support, and issues related to child custody and support:

• Property Division: Assets and debts acquired during the marriage need to be divided equitably. This includes real estate, vehicles, retirement accounts, household items, and financial liabilities.
• Spousal Support: Also known as alimony, this involves one spouse providing financial support to the other after the divorce.
• Child Custody and Support: Decisions need to be made regarding who will have physical and legal custody of the children, visitation rights, and the financial support to be provided for the children’s upbringing.

Court Hearings and Trial

The progression of a divorce case often involves several court appearances and potentially a trial. These stages are crucial in shaping the outcome of the divorce. They include preliminary and final conferences and, if necessary, a divorce trial.

Preliminary and Final Conferences

In the initial stages of a divorce case, the court facilitates preliminary and final conferences to help streamline the case and encourage settlement.

Initial Conference

The preliminary conference, often referred to as the initial conference, is the first formal court proceeding in a divorce case. The purpose of this conference is to:

• Identify the contested issues: Parties make clear what they agree on and what they dispute. This could include matters of child custody, property division, alimony, and child support.
• Establish a timeline: The court sets a schedule for key dates and deadlines, such as when discovery must be completed, when motions can be filed, and a tentative date for trial if necessary.
• Facilitate settlement discussions: The court may encourage parties to negotiate and potentially reach an early settlement.

Final Conference

A final conference often occurs after the discovery phase but before a trial. The purpose of the final conference is to:

• Review the status of the case: The court assesses what’s been done and what remains to be resolved.
• Encourage settlement: The court usually encourages parties to resolve their disputes through negotiation or mediation, reducing the need for a trial.
• Prepare for trial: If a trial seems inevitable, the court will review the trial readiness of the case, ensuring all necessary preparations are underway.

Divorce Trials in New York

If the parties in a divorce case cannot reach a settlement, the case goes to trial. The trial is a formal court proceeding where both sides present their cases and the judge makes a final decision.

Trial Preparation

The preparation for a divorce trial is extensive. It involves gathering and organizing evidence, preparing witnesses, and creating a trial strategy. Both parties, typically with the assistance of their attorneys, work to build a robust case that supports their desired outcomes.

Trial Proceedings

During the trial, each party presents their case. This involves presenting evidence, questioning witnesses, and making arguments to the judge. The judge listens to all the evidence and arguments before making a decision.

Judgment and Appeals

Once the trial concludes, the judge makes a decision on all contested issues. This judgment is legally binding and sets the terms of the divorce. If either party disagrees with the judgment, they can appeal to a higher court. However, successful appeals are rare and typically require demonstrating that a clear legal error occurred during the trial.

Getting the Legal Help of a Manhattan Divorce Lawyer

Asking for a divorce is a significant step that requires thoughtful consideration and preparation. It’s important to approach the conversation with clarity, empathy, and a willingness to navigate the subsequent stages carefully. Remember, your goal is to express your decision in a way that respects the feelings of your spouse and paves the way for an amicable divorce process. Your approach can significantly influence how smoothly the divorce process unfolds, affecting not just you and your spouse, but any children involved as well.

A New York divorce attorney can be an invaluable ally during this process. From helping you prepare for the initial conversation to guiding you through negotiations, court hearings, or even a trial, a lawyer can provide the legal experience and support you need. Going through a divorce can be a difficult journey, but with the right approach and professional assistance, you can navigate it in a manner that respects everyone’s well-being and leads to a fair resolution. Contact the Law Office of Richard Roman Shum, Esq today at (646) 259-3416 to schedule a consultation with our Manhattan divorce lawyers.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/initiating-divorce-a-how-to-guide/

Is a Divorce Public Record?

People often worry about the accessibility of the records of their divorce proceedings. The question of whether divorces are public records does not have a one-size-fits-all answer, as the laws regarding the privacy of these records can vary greatly by jurisdiction. Parties involved in a divorce, including the plaintiff in a divorce, need to understand how these laws might affect the confidentiality of their divorce proceedings.

If you’re facing a divorce in New York and are uncertain about how your records will be handled, it’s crucial to consult with a knowledgeable divorce lawyer. At The Law Office of Richard Roman Shum, Esq, our team of Manhattan divorce lawyers may be able to guide you and help ensure that your privacy is protected throughout the process. For personalized advice and to understand your rights, call us today at (646) 259-3416 to schedule a consultation.

What are Divorce Records?

The phrase “divorce record” encompasses various forms of paperwork associated with the dissolution of a marriage. Knowing the specifics of what each type of record contains is crucial for those aiming to maintain their privacy to the greatest extent possible.

Different documents commonly recognized as “divorce records” include:

• Divorce Certificates: Issued by the New York State Department of Health, a divorce certificate serves as official proof that a marriage has been legally dissolved. It contains only basic details, such as the names of the divorced parties, the county where the divorce was granted, and the date it was finalized. Divorce certificates are typically required for purposes such as legal documentation of marital status or remarriage. However, access to these certificates is restricted to the individuals named in the record and those with a legally recognized interest.
• Divorce Decrees: This is the official court order that concludes the divorce proceedings. The content of a divorce decree can vary significantly. In New York, divorce decrees are issued by the New York Supreme Court and include terms related to asset division, spousal support, child custody, and other legally binding agreements. Others are more succinct, listing only the involved parties and referring to separate agreements that dictate the terms of the divorce. Divorce decrees are not public records in New York and can only be accessed by the individuals involved, their attorneys, or others with a court-approved request.
• Divorce Court Records: These records represent the most exhaustive category, comprising the full suite of filings and documents in a divorce case, as well as transcripts and recordings of the court sessions. Divorce court records are a treasure trove of information, potentially revealing financial data, childcare arrangements, grounds for the divorce, and other personal details of the individuals involved.

Divorce Records	Description
Divorce Certificate	A formal document issued by the state’s vital records office, summarizing the dissolution of a marriage. Includes names, court location, and official date.
Divorce Decree	The official court order concluding the divorce proceedings. Content varies, from detailed arrangements (asset division, custody) to succinct listings.
Divorce Court Records	Comprehensive records including all filings, documents, transcripts, and recordings in a divorce case. Reveals financial data, arrangements, and personal details.

The Confidentiality of Divorce Records in New York

Unlike some jurisdictions where divorce records may be considered public information, New York treats these documents with a high degree of confidentiality. Under New York Domestic Relations Law § 235, divorce case files are automatically sealed and are not available to the public. This means that the personal and often sensitive information contained within the divorce proceedings is protected from public scrutiny. The court may permit redactions of sensitive details such as addresses or financial information, but full divorce records remain sealed unless a court order grants access. The sealing of these records is in place to preserve the privacy of the individuals involved, especially when sensitive allegations such as abuse, infidelity, or mental health issues are part of the court documents.

Who Has Access to Divorce Records in New York?

In New York, the accessibility of divorce records is highly regulated to respect the privacy of the individuals involved. As such, the ability to acquire these records is limited to a select group. The primary individuals who can request and receive a copy of a divorce record include:

• The parties who were formerly married to each other.
• The legal representatives of the divorced individuals.
• Any individual granted a court order from the State of New York.

Obtaining a court order to access someone else’s divorce records necessitates a valid, legal reason, as the court must be persuaded that a significant interest justifies such access. For instance, divorce details might be sought for cases that hinge on marital history, such as inheritance disputes or related court proceedings.

How New York Protects the Privacy of Divorce Records

New York takes significant steps to safeguard the privacy of divorce records. Unlike many other court proceedings, divorce documents in New York are strictly confidential and are not open to public inspection. Under Domestic Relations Law Section 235, access to divorce records, including settlements, decrees, affidavits, and other case documents, is limited to the parties involved in the divorce and their attorneys. Any other individual or entity seeking access must obtain a court order.  

These records remain sealed for 100 years following the divorce. This means that detailed information about the case such as financial agreements, property division, and custody arrangements cannot be accessed by the general public during this period. Only individuals who were directly involved in the case or their legal representatives can formally request access through the County Clerk’s office.  

While the content of divorce records is protected, some basic information, such as the fact that a couple divorced, can still be searched. Unless explicitly sealed by the court, case names and docket numbers are generally available for public viewing. Additionally, court decisions on motions or appeals may be published, potentially revealing limited details about the case.  

New York’s strict privacy laws reflect the state’s commitment to protecting sensitive personal information during and after a divorce. Couples who wish to further protect their privacy may also explore alternative processes like mediation or collaborative law to resolve their divorce outside the courtroom.

Circumstances for Unsealing Divorce Records

In certain exceptional situations, a court may decide to unseal divorce records or specific parts thereof. Divorce records are automatically sealed and can only be accessed by the parties involved, their attorneys, and the court. However, a judge may grant a motion to unseal records if there is good cause which is a compelling legal reason that outweighs privacy concerns.

A common scenario for unsealing occurs when a party requires access to the records for use in an unrelated legal case, such as proving financial fraud or seeking evidence in a malpractice claim. In such cases, the court may allow access to relevant portions of the divorce file while keeping other details private.

It’s important to note that sealing a divorce decree does not remove the case’s existence from public record searches. The case index number, filing date, and parties’ names remain publicly accessible unless a separate motion is filed to redact identifying details. 

Additionally, court decisions on motions filed within the divorce case may be published, and if the case is appealed, the appellate court’s ruling is typically available to the public. Seeking judicial approval is necessary to unseal divorce records, so consulting a Manhattan divorce attorney before filing a request may be beneficial.

How Do I Get Divorce Records In New York?

Navigating the process of obtaining divorce records in New York can be a straightforward task with the right information at hand. Below is an essential guide that outlines the steps and requirements for accessing both divorce decrees and certificates in the state.

Locating Divorce Judgments or Decrees

To retrieve certified copies of divorce judgments or decrees, you need to contact the County Clerk’s office where the divorce was finalized or the County Clerk in the county where the petitioner for the divorce resides. In many cases, the County Clerk’s office is situated in the same facility as the Supreme Court within the county. If the offices are separate, instructions to locate the County Clerk can be obtained from the Supreme Court clerk.

Certified Copies of Divorce Decrees

To obtain a certified copy of a divorce decree, you may either visit the County Clerk’s office personally or send a mail request. Access to these documents is restricted to the divorced parties, their legal counsel, or individuals with a specific court order. Attorneys must place their requests on the official letterhead of their company. 

The New York State Supreme Court directory provides the necessary contact details for supreme courts and county clerks across the counties. There is a fee for obtaining certified copies, usually starting at $1.30 for copying costs and $8 for certification, but the County Clerk’s office will provide the exact fee structure.

Requesting Divorce Certificates

Divorce certificates are maintained by the Department of Health’s Bureau of Vital Records and can be requested through several methods:

• Online or by phone: Quick and convenient access is often available through third-party websites that operate in partnership with the Department of Health.
• By mail: Applicants must complete the necessary form and include copies of their identification, along with payment via postal money orders, personal checks, or certified checks made payable to the New York State Department of Health. Cash is not accepted for mail requests.
• In-person: When requesting in person, the fee is $45, and you can pay with cash, money orders, or checks. Debit or credit card payments are not accepted.

Identification Requirements

Divorce certificates are classified as confidential. As such, only individuals directly involved in the divorce or those who possess a court order are permitted to request these documents. Valid identification must accompany all requests, which could include a driver’s license, state-issued photo ID, military ID, passport, or other official documents that verify the applicant’s name and address.

Availability of Records

The New York State Department of Health stores divorce certificates for divorces granted on or after January 1, 1963. For earlier divorces, the County Clerk’s Office where the divorce was granted is the only source for obtaining records.

Individuals who follow these procedures and meet the necessary requirements can obtain the appropriate divorce records while complying with New York State’s legal access restrictions.

Getting the Legal Assistance of an Experienced Manhattan Divorce Lawyer

New York divorce records are not publicly accessible, reflecting the state’s commitment to the privacy of individuals during these often sensitive times. The confidentiality of these records ensures that the personal details and hardships experienced during the dissolution of a marriage are shielded from public scrutiny, providing a level of dignity and discretion to the involved parties.

If you are navigating through a divorce in Manhattan and have concerns about keeping your divorce records discreet, it’s crucial to have experienced legal guidance. At The Law Office of Richard Roman Shum, Esq, attorney Richard Roman Shum and our team of Manhattan divorce lawyers can offer you tailored advice and support needed to protect your privacy rights effectively. For personalized assistance and to ensure your divorce is handled with the utmost confidentiality, contact us today at (646) 259-3416 to schedule a consultation.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/is-a-divorce-public-record/

What is the Meaning of Full Custody in New York City?

Understanding the legal terminology and the implications child custody holds is crucial for ensuring the well-being and stability of children. One term that frequently arises in custody disputes is “full custody.” In this article, we will delve into the meaning of full custody in New York City, shedding light on its significance and the potential impact it can have on both parents and children.

When facing a custody battle, it is vital to seek the guidance and support of a knowledgeable New York family law attorney. At The Law Office of Richard Roman Shum, Esq., our New York child custody lawyers can assist by providing invaluable assistance, explaining different types of custody, including joint custody, and helping parents understand the rights and responsibilities associated with those arrangements. Our team can guide you through the legal process, helping you prepare a compelling case to present before the family court. Contact us today at (646) 259-3416 to schedule a consultation.

Definition of Full Custody

In the context of family law, full custody, also known as sole custody, implies that one parent is granted the exclusive right and responsibility for making decisions about the child’s welfare. This includes making decisions related to the child’s education, medical care, religion, and other aspects of their upbringing.

Full custody may consist of both physical and legal custody. Physical custody encompasses where the child primarily resides and who is responsible for their day-to-day care, whereas legal custody refers to the authority granted to a parent to make essential decisions for their child’s well-being.

In some cases, a parent may be awarded full physical custody while still sharing legal custody with the other parent. In other cases, one parent may have both full physical and legal custody, limiting the other parent’s rights and responsibilities.

Difference Between Full Custody and Joint Custody

The main difference between full custody and joint custody lies in the distribution of decision-making authority and the child’s residence.

In full custody, one parent has exclusive control over the child’s upbringing, including the right to make decisions about their education, healthcare, and religious practices. This parent also has primary physical custody, meaning the child resides with them most of the time. The noncustodial parent may have visitation rights but does not have the same level of control over the child’s life.

On the other hand, joint custody allows both parents to share responsibilities for their child’s care and participate in the decision-making process. Joint custody can be split into joint physical custody, joint legal custody, or a combination of both. In this arrangement, both parents are expected to work together for the child’s best interests.

Determining the suitable custody option for your family is a challenging process, often involving negotiations, mediation, or courtroom trials. In New York, judges prioritize the child’s best interests when deciding custody matters. Factors influencing their decision may include the child’s age, parents’ ability to cooperate, each parent’s parenting skills, and any history of domestic violence or abuse.

Full Custody vs Sole Custody

When parents decide to divorce or legally separate, they must establish child custody arrangements that prioritize the child’s best interests. There are various types of child custody, and it’s crucial to select the most appropriate option for your family’s unique circumstances.

Both sole custody and full custody entail designating one parent as the primary authority figure. These custody arrangements are typically suitable when one parent is either unwilling or unable to sufficiently provide for the child. It’s important to clarify the distinction between full custody and sole custody, as these terms are often used interchangeably but carry different meanings.

Full custody refers to a situation in which one of the parents, whether the mother or father, assumes all rights and responsibilities for the child. This means that one parent has complete authority over critical aspects such as medical care, education, religious upbringing, and other decisions related to the child’s upbringing. The parent with full custody holds both legal and physical custody.

Sole custody, on the other hand, occurs when one parent has exclusive authority and responsibility for the child. In this case, the other parent holds no legal rights or responsibilities toward the child. The custodial parent is not required to consult with the noncustodial parent regarding matters such as the child’s medical care, education, and upbringing.

Determining whether sole custody or full custody is more appropriate depends on your unique circumstances and what best suits your family’s needs. If you are contemplating either option, it is recommended to seek guidance from an experienced New York family law attorney who can offer advice tailored to your situation and the best interests of your child. Contact The Law Office of Richard Roman Shum, Esq. today to schedule a consultation and gain the support you need.

What Does Sole Custody Mean for the Other Parent?

When one parent is awarded sole custody, it significantly affects the noncustodial parent’s role and involvement in their child’s life. Here’s what sole custody means for the noncustodial parent:

Limited Physical Presence: The noncustodial parent does not have the child living with them on a full-time basis. They may be granted visitation rights, which can vary from regular, unsupervised visits to more restricted, supervised visits, depending on the court’s decision. These visitation rights are crucial for maintaining a connection with the child, despite not having primary physical custody.

No Legal Decision-Making Authority: In cases of sole legal custody, the noncustodial parent does not have the authority to make significant decisions regarding the child’s upbringing. This includes decisions about education, healthcare, and religious practices. The custodial parent holds the exclusive right to make these decisions, though the noncustodial parent may still be informed or consulted.

Communication and Compliance: It is essential for the noncustodial parent to adhere to the terms of the custody agreement, including visitation schedules and any other stipulated conditions. Effective communication with the custodial parent can help in coordinating visitation and staying informed about the child’s life and well-being.

Financial Responsibilities: The noncustodial parent is typically required to provide child support, contributing to the child’s living expenses, education, and other needs. This financial obligation is determined by the court and is based on various factors, including income and the needs of the child.

While sole custody limits the noncustodial parent’s involvement in daily decision-making and physical presence, it does not entirely remove their role and responsibilities. Understanding and fulfilling their obligations, as well as maintaining open lines of communication, are vital for the well-being of the child and the noncustodial parent’s continued relationship with them.

The Legal Process of Obtaining Full Custody in NYC

Obtaining full custody in New York City follows a legal process that involves several steps. It’s important to note that custody cases can vary depending on the specific circumstances and the best interests of the child involved. Here is a general overview of the process:

• Consult with an attorney: It’s recommended to consult with an experienced family law attorney who specializes in custody cases. They can guide you through the process and provide legal advice based on your unique situation.
• Filing a petition: The first step is to file a petition for custody with the Family Court in the appropriate jurisdiction in New York City. You will need to provide information about yourself, the child, and the reasons why you are seeking full custody.
• Serve the other parent: After filing the petition, you must have a copy of the petition and a summons served on the other parent. Proper service ensures that the other parent is aware of the custody case and has an opportunity to respond.
• Preparing for court: Both parties may be required to attend mediation or counseling sessions to attempt to reach an agreement on custody. If an agreement is not reached, the case proceeds to court.
• Court appearances: The court will schedule appearances to gather information and make decisions regarding custody. These appearances may involve presenting evidence, witness testimony, and arguments from both sides. The court will consider factors such as the child’s best interests, the parent-child relationship, the physical and mental health of the parents, and other relevant factors.
• Investigation and evaluation: In some cases, the court may order an investigation or evaluation by a court-appointed professional, such as a social worker or psychologist. The evaluator will assess the child’s living situation, relationships with parents, and other relevant factors, providing a report to the court.
• Custody determination: Based on the information presented during the hearings and any professional evaluations, the court will make a custody determination. The court may award sole custody to one parent or joint custody, depending on what is deemed to be in the best interests of the child.
• Custody order: If you are granted full custody, the court will issue a custody order outlining the rights and responsibilities of each parent. The custody order may include provisions related to visitation, decision-making authority, and other relevant matters.

It’s important to consult with an attorney to understand the specific requirements and procedures in your case. Family law cases can be challenging, given that they primarily involve parties with close personal relationships. An attorney can provide guidance tailored to your situation to help you navigate the process effectively.

Factors Considered by the Court in Custody Decisions

When it comes to determining custody arrangements in divorce or separation cases, various factors are considered to ensure the well-being and best interests of the child. Courts carefully evaluate multiple aspects of the parents’ lives and their ability to provide stability. In custody disputes, the court or voluntary agreement typically favors the parent who was initially awarded custody. If one parent has been primarily responsible for raising the child during a period when the other parent was absent from the home, the court will prioritize maintaining stability for the child by keeping them in their current living situation rather than switching custody to the other parent.

Child Care Arrangements

When both parents have work obligations, the parent with better childcare arrangements is often given priority in custody decisions. If one parent can demonstrate significantly superior childcare arrangements compared to the other, it may influence the custody arrangement.

Primary Caretaker

The parent who served as the primary caretaker of the child prior to the divorce or separation may be granted priority in custody disputes. For instance, if one parent dedicated substantially more time to childcare while the other parent worked or engaged in other activities, the parent who acted as the primary caretaker is more likely to be awarded custody.

Drugs and Alcohol

Evidence of substance abuse can impact the custody decision, with a parent struggling with drug or alcohol misuse being less likely to receive custody. The court will take into account the well-being and safety of the child when determining custody arrangements.

Mental Health of the Parents

Untreated mental illness, personality disorders, emotional instability, or poor parenting skills may influence the custody award. A parent experiencing such conditions is less likely to be granted custody due to concerns about their ability to provide a stable and nurturing environment for the child.

Physical Health of the Parent

If a severe physical illness or disability significantly hampers one parent’s capacity to care for the child, it may affect the custody decision. The parent suffering from such a condition may be less likely to receive custody, as the court considers the child’s well-being and the ability of each parent to meet their needs.

Spousal Abuse

Instances of domestic violence committed by one parent against the other, especially in the presence of the child, will have a considerable impact on the custody decision. The parent who engaged in abusive behavior is less likely to be awarded custody due to concerns for the safety and well-being of the child.

Abuse, Neglect, and Abandonment

Evidence of child abuse, neglect, abandonment, or persistent interference with the other parent’s visitation rights can significantly influence custody arrangements. A parent who has been found to engage in such behaviors is less likely to receive custody, as the court prioritizes the child’s safety and welfare.

Child’s Preference

Depending on the child’s age, their preference to live with one parent may be taken into consideration. However, the court carefully examines the reasons behind the child’s preference. If the child’s choice is based on a parent who fails to provide proper discipline or set appropriate boundaries, the court may find that living with that parent would not be in the child’s best interest.

Finances of Each Parent

The court considers the financial ability of each parent to provide for the child’s needs. If one parent is unable to afford suitable housing or meet the child’s basic necessities, it may negatively impact their chances of receiving custody.

Conditions in the Home Environment

Courts prioritize placing the child in a safe and healthy environment. If one parent’s household poses potential dangers, such as a violent new partner, frequent parties, or hazardous items, it could affect the custody decision. The parent residing in an unsafe environment is less likely to be granted custody to ensure the child’s well-being.

Educational Opportunities

The court may consider the educational opportunities offered by each parent. If one parent can provide significantly better educational options, such as access to an excellent school or meeting the child’s specific educational needs, it may influence the custody decision in their favor.

Where the Child’s Siblings Live

Courts strive to keep siblings together whenever possible. If the child has siblings or half-siblings living with one parent, it may affect the custody decision, as maintaining sibling relationships is considered beneficial for the child’s well-being.

Court’s Observations of the Parents

The court pays attention to the behavior of both parents during court proceedings. They are more inclined to grant custody to the parent who demonstrates a willingness to foster a healthy relationship between the child and the other parent. The court values a cooperative and supportive attitude that prioritizes the child’s best interests and a stable and nurturing environment.

Full Custody and Child Support

When full custody is awarded, the noncustodial parent is typically required to pay child support. Child support obligations are based on New York’s Child Support Standards Act (CSSA), which considers the noncustodial parent’s income and the number of children involved. Payments are intended to cover basic needs such as housing, food, and clothing, along with additional expenses like health care and education.

The court aims to provide the child with a stable environment and ensure they maintain a standard of living that they would have enjoyed if the household were intact. Even if a noncustodial parent spends limited time with the child, the financial obligation remains. Judges may adjust support based on special circumstances, such as the child’s medical needs or the noncustodial parent’s financial hardship. 

This financial support is crucial in cases of full custody, as the custodial parent bears most day-to-day expenses. The legal system in New York City diligently applies these guidelines to protect the best interests of the child, ensuring they receive adequate support from both parents despite the custody arrangement.

The purpose of child support is to guarantee that both parents contribute financially to the child’s upbringing, regardless of who holds custody. Failure to pay child support can lead to significant consequences, such as wage garnishment, the suspension of a driver’s license, or even legal action.

Full custody decisions often intertwine with child support rulings. Therefore, once full custody is established, the court will also address child support to provide financial stability for the child’s upbringing.

Full Custody Modification in NYC

In New York City, child custody orders can be modified if there is a substantial change in circumstances or the current arrangement is no longer in the child’s best interest. This section will discuss when and how to request a custody modification, as well as options for enforcing a full custody order when a parent is not abiding by the terms.

When to Request a Custody Modification

There are several reasons a parent may need to request a custody modification. These can include changes in a parent’s living situation, employment, or health, or concerns about the child’s well-being and safety. Below are some examples of when a custody modification may be appropriate:

• One parent has experienced a significant change in health, impacting their ability to care for the child.
• The child’s needs have changed, and the current custody arrangement no longer meets those needs.
• One parent has become involved in illegal activities or develops a substance abuse issue.
• One parent intends to relocate, which would make the current custody arrangement difficult or impossible to maintain.
• There is evidence of abuse or neglect by one parent, necessitating a change in custody to protect the child.

In such circumstances, the parent seeking the modification must prove that the change in circumstances warrants a change in custody and that the modification would be in the child’s best interest.

Reasons for Custody Modification	Examples	Actions Taken
Parent’s change in health	Serious illness or disability, mental health issues	Request medical evaluation, obtain medical records, present evidence of health condition
Child’s changing needs	Specialized care or therapy requirement, educational changes	Obtain expert evaluations, present evidence of changing needs, propose modified custody plan
Parent’s involvement in illegal activities or substance abuse	Arrest for drug-related offenses, involvement in criminal activities	Gather police/court records, collect witness statements, provide substance abuse documentation
Parent’s intent to relocate	Job offer in another state, relocation far from child’s residence	Verify relocation intent, assess impact on child’s well-being and visitation rights, suggest alternative custody/visitation arrangements
Evidence of abuse or neglect	Reports of physical/emotional abuse, signs of neglect or inadequate care	Document instances of abuse/neglect, gather witness testimonies, involve child protective services, seek restraining order or protective measures

Working with a New York Child Custody Attorney

Navigating child custody laws in New York City can be overwhelming, which is why seeking the assistance of a New York child custody attorney is highly recommended. An attorney widely experienced in family law can provide invaluable guidance and support throughout the entire custody process.

At The Law Office of Richard Roman Shum, Esq., family law attorney Richard Roman Shum and our team of New York child custody lawyers may be able to help gather evidence, build a strong case, and advocate for your interests in court. We can represent you during negotiations and hearings, skillfully presenting arguments and ensuring that your concerns and desires are properly addressed.

Contact The Law Office of Richard Roman Shum, Esq. today at (646) 259-3416 to schedule a consultation.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/what-is-the-meaning-of-full-custody-in-new-york-city/

How Does Separate Property Become Marital Property in New York?

When couples get married, they often bring their own individual assets and properties into the union. In New York, the concept of separate and marital property plays a crucial role in the division of assets during a divorce. Understanding how separate property can transform into marital property is essential for anyone facing the challenges of divorce law. 

Going through the details of property division during a divorce in New York can be overwhelming and frustrating. This is where seeking the help of a knowledgeable and experienced New York divorce attorney is essential. At the Law Office of Richard Roman Shum, Esq, Manhattan divorce lawyer Richard Roman Shum can guide you through the legal process, providing experienced advice and representation to ensure your rights are protected and your interests are well-represented. From identifying and classifying separate and marital property to assessing the factors that contribute to the transformation of separate property, our team can help you tackle asset division, striving to achieve a fair and equitable outcome for your case. We can also advise on how to handle situations involving a husband selling assets before divorce, ensuring that such actions are addressed properly in court. Contact us today at (646) 259-3416 to schedule a consultation.

Separate and Marital Property in New York

When considering property division in a divorce, it’s essential to understand the difference between separate and marital property under New York law. This distinction plays a crucial role in determining how assets are distributed during the dissolution of a marriage.

Definition of Separate Property

Separate property refers to assets that one spouse owned before entering the marriage or acquired during the marriage through inheritance, a gift from a third party, or personal injury compensation. Additionally, property purchased with separate funds or exchanged for separate property will retain its separate property status, provided that it has been adequately traced and documented. It’s important to note that separate property remains the sole possession of the owning spouse and is generally not subject to division during a divorce.

Definition of Marital Property

Marital property, on the other hand, includes all assets acquired by either spouse during the marriage, regardless of whose name is on the title. This can encompass various types of property such as real estate, bank accounts, investments, retirement accounts, and business interests. New York follows the equitable distribution principle, which means that marital property is divided fairly, though not necessarily equally, between spouses based on various factors and circumstances.

Importance of Distinguishing Between Separate and Marital Property

Distinguishing between separate and marital property is crucial for several reasons. First, it helps to ensure that each spouse receives a fair share of the marital assets upon the dissolution of the marriage. Additionally, it can protect the separate property of one spouse from being distributed to the other in a divorce. This distinction is particularly important in cases where one spouse has significantly more separate property than the other or when one spouse has received a substantial inheritance or gift.

It’s also essential to note that separate property can become marital property under certain circumstances, such as when it is commingled with marital assets or used to benefit both spouses during the marriage. For example, if separate funds are used to pay off a mortgage on a marital home, the separate property may become marital property. Similarly, if a separate property appreciates in value due to the efforts or contributions of the other spouse, that appreciation may be considered marital property.

Legal Framework for Property Classification in New York

The legal framework for property classification in New York is governed by the state’s domestic relations law, specifically the concept of equitable distribution. Additionally, prenuptial and postnuptial agreements play a significant role in determining property rights in a marriage. In this section, we will explore the key aspects of New York’s equitable distribution law and the function of prenuptial and postnuptial agreements in property classification.

New York’s Equitable Distribution Law

New York’s Equitable Distribution Law governs the division of marital assets during a divorce. Established to ensure fairness, the law aims for a just distribution of property between spouses. Contrary to equal distribution, equitable distribution considers various circumstances to achieve an equitable, or fair, outcome. Courts take a holistic approach, examining the marriage’s duration, each spouse’s financial situation, and their future needs. Importantly, the law differentiates between separate and marital property, with only marital property subject to distribution. Ultimately, this legal framework strives to fairly divide assets, promoting a balanced resolution for both parties during the divorce process.

Is a House Owned Before Marriage Marital Property in New York?

In New York, a house owned by one spouse before marriage is generally considered separate property and not subject to division in a divorce. 

However, the classification of the house can change based on certain actions taken during the marriage. If marital funds (money earned during the marriage) are used for paying the mortgage, maintaining, or improving the home, this can create a situation where the house, or at least the increase in its value due to these contributions, may be considered marital property. 

This means that while the original value of the house at the time of the marriage may remain separate, any appreciation in value attributable to marital effort or investment could be subject to division under New York’s equitable distribution laws.

Equitable distribution in New York does not automatically mean a 50-50 split but aims to achieve a fair allocation of assets based on several factors, including each spouse’s contribution to the property. Therefore, if a house owned before the marriage has increased in value due to the efforts or funds of both spouses, that increase in value could be divisible between the spouses in a divorce.

Maintaining clear documentation of financial contributions and keeping separate accounts can help preserve the house’s classification as separate property. However, even if the house is separate property, if it became the marital residence, a judge may factor that into property division decisions, particularly if the other spouse relied on living there.

For individuals facing divorce in Manhattan, these nuances are critical when assessing how a premarital property, like a house, will be treated in the divorce settlement.

Factors Contributing to the Transformation of Separate Property

In some cases, separate property can transform into marital property during the course of a marriage. This transformation typically occurs due to the commingling of assets, transmutation through title change, or the appreciation of separate property during the marriage. These factors can help couples protect their separate property and ensure a fair division of assets in the event of a divorce.

Commingling of Assets

Commingling occurs when separate property becomes mixed or combined with marital property in such a way that it becomes difficult or impossible to distinguish between the two. When commingling takes place, the previously separate property may lose its separate character and become part of the marital estate, subject to division in a divorce.

Examples of commingling include depositing separate funds into a joint bank account, using separate property to pay for marital expenses, or using marital assets to improve or maintain separate property. To prevent separate property from becoming commingled, it is essential to maintain clear records and keep separate assets in distinct accounts or separate titles.

Transmutation Through Title Change

Transmutation occurs when separate property is intentionally converted into marital property through a change in title or ownership. This can happen when one spouse transfers a separately owned asset, such as real estate or a vehicle, into joint ownership with the other spouse. The act of transferring title can be viewed as a gift to the marriage, thereby converting the separate property into marital property.

To avoid unintentional transmutation, spouses should be cautious when making changes to the title or ownership of their separate property. It is also essential to maintain proper documentation to prove the original separate property status, should it be necessary in the event of a divorce.

Appreciation of Separate Property During Marriage

Appreciation refers to the increase in value of an asset over time. While the appreciation of separate property during a marriage is generally considered separate property, it can become marital property under specific circumstances. If the appreciation is due to the active efforts, contributions, or investments of the non-owner spouse or marital funds, it may be deemed marital property and subject to division in a divorce.

For example, if one spouse owns a business before marriage and the business appreciates in value during the marriage due to the active involvement of the other spouse, the appreciation may be considered marital property. Similarly, if separate property real estate appreciates due to improvements or maintenance funded by marital assets, that appreciation may be deemed marital property.

To safeguard the separate nature of appreciated property, it is crucial to maintain clear records and documentation, such as receipts and invoices, to demonstrate the source of funds used for improvements and the contributions of each spouse.

Protecting Separate Property from Becoming Marital Property

Preserving separate property from becoming marital property is crucial to ensure a fair division of assets in the event of a divorce. Spouses can establish clear boundaries and prevent potential disputes by using methods to protect separate property. This section will discuss the importance of maintaining separate bank accounts, documenting gifts and inheritances, and using prenuptial and postnuptial agreements as tools to safeguard separate property.

Maintaining Separate Bank Accounts

One of the most effective ways to protect separate property is to maintain separate bank accounts for each spouse. Doing so helps prevent the commingling of assets, which occurs when separate and marital property become mixed or combined in such a way that it is difficult or impossible to distinguish between the two. Commingling can unintentionally convert separate property into marital property, making it subject to division in a divorce.

To prevent commingling, spouses should ensure that any separate funds, such as income from separate property or inheritances, are deposited into their respective separate accounts. Additionally, separate property should not be used to pay for marital expenses, as this can also lead to commingling. By keeping separate bank accounts and avoiding the use of separate funds for marital purposes, spouses can maintain clear boundaries between separate and marital property.

Documenting Gifts and Inheritances

Gifts and inheritances received during the marriage are generally considered separate property, as long as they are given solely to one spouse. However, it is essential to document these assets properly to maintain their separate property status and prevent any disputes in the event of a divorce.

Proper documentation should include a clear paper trail that demonstrates the separate nature of the asset. For example, when receiving an inheritance, the recipient spouse should retain a copy of the will, trust documents, or any other relevant paperwork that explicitly states the request is intended for them alone. Similarly, when receiving a gift from a third party, the recipient spouse should obtain a written statement from the giver confirming that the gift was intended solely for them.

By maintaining thorough documentation, spouses can establish a clear chain of ownership and protect their separate property rights in gifts and inheritances.

Using Prenuptial and Postnuptial Agreements

Prenuptial and postnuptial agreements are legally binding contracts between spouses that outline the distribution of property in the event of a divorce. These agreements can be particularly useful in clarifying property rights and protecting separate property from becoming marital property.

A prenuptial agreement, also known as a premarital agreement, is entered into before marriage. It commonly addresses issues such as how assets and liabilities will be divided, spousal support, and the rights of each spouse in the event of death. By determining these matters in advance, couples can avoid potential disputes and ensure the protection of their separate property.

A postnuptial agreement is similar to a prenuptial agreement but is entered into after the marriage has taken place. Couples may choose to create a postnuptial agreement to address changes in their financial situation or to clarify property rights that were not previously defined. Like prenuptial agreements, postnuptial agreements can help protect separate property and establish guidelines for the division of assets in the event of a divorce.

Both prenuptial and postnuptial agreements must meet specific legal requirements to be considered valid and enforceable in New York. Some of these requirements include:

• The agreement must be in writing and signed by both parties.
• The agreement must be acknowledged by a notary public.
• The agreement must not be unconscionable or grossly unfair.
• The agreement must be entered into voluntarily and without coercion.

The principles of equitable distribution and the role of these agreements help couples manage their property rights more effectively and ensure a fair division of assets in the event of a divorce. Consulting with an experienced divorce lawyer can provide valuable guidance in navigating property classification and division in New York.

Methods to Protect Separate Property From Becoming Marital Property	Description	Benefits
Maintaining Separate Bank Accounts	Keeping separate bank accounts for each spouse to prevent commingling of assets and maintain clear boundaries.	Prevents conversion of separate property into marital property, ensuring fair asset division.
Documenting Gifts and Inheritances	Properly documenting gifts and inheritances to establish ownership and maintain separate property status.	Protects separate property rights, reduces the risk of disputes during divorce.
Using Prenuptial and Postnuptial Agreements	Entering legally binding contracts to outline property distribution, clarify rights, and protect separate property.	Establishes guidelines, prevents disputes, ensures fair asset division.

Dividing Marital Property in a New York Divorce

The division of marital property in a New York divorce is governed by the principle of equitable distribution. This process entails determining the value of marital property, considering various factors for equitable distribution, and negotiating a property settlement agreement. These steps can help spouses navigate a fair division of assets during their divorce.

Determining the Value of Marital Property

The first step in dividing marital property is to determine the value of all assets acquired during the marriage. This process typically begins with an inventory of all marital assets, including real estate, vehicles, bank accounts, retirement accounts, investments, and personal property. Debts incurred during the marriage, such as mortgages, loans, and credit card balances, must also be assessed as they factor into the overall distribution.

To establish the value of each asset, spouses may need to obtain professional appraisals or valuations. Real estate and personal property, such as artwork or collectibles, may require appraisals from certified professionals. The valuation of retirement accounts, pensions, and investments may necessitate the assistance of a financial professional or actuary.

By accurately determining the value of all marital property and debts, spouses can ensure a comprehensive assessment of their financial situation, which is essential for a fair division of assets.

Equitable Distribution Factors

New York follows the principle of equitable distribution, meaning that marital property is distributed fairly between the parties, though not necessarily equally. The court considers various factors to determine an equitable distribution, including:

• The duration of the marriage
• The age and health of both spouses
• The income, earning capacity, and financial resources of each spouse
• The contributions of each spouse to the acquisition, preservation, or appreciation of marital property
• The loss of inheritance and pension rights due to the divorce
• The needs of the custodial parent for the marital residence or other assets
• The tax consequences of the property distribution
• Any other factor the court deems relevant

Separate property, which includes assets owned before the marriage and those acquired during the marriage through inheritance, gifts from third parties, or personal injury compensation, is not subject to division under equitable distribution. However, separate property can become marital property under certain circumstances, such as commingling or transmutation.

Negotiating a Property Settlement Agreement

Once the value of marital property has been determined and equitable distribution factors have been considered, spouses can negotiate a property settlement agreement. This agreement outlines the division of assets and debts, as well as any other financial matters related to the divorce, such as spousal support and child support.

Negotiating a property settlement agreement can be a contentious process, as both parties may have different perspectives on what constitutes a fair division of assets. In some cases, spouses may be able to reach an agreement through informal negotiations or alternative dispute resolution methods, such as mediation or collaborative divorce. If an agreement cannot be reached, the court will ultimately decide the division of marital property based on the equitable distribution factors.

Working with an Experienced Manhattan Divorce Attorney

In New York, the transformation of separate property into marital property is a crucial aspect of asset division during a divorce. Understanding the factors that contribute to this transformation is essential for individuals seeking a fair and equitable distribution of assets. A New York divorce attorney can provide invaluable assistance throughout the process. With their extensive knowledge of family law and experience in navigating property division matters, they can guide individuals through the details of the system. 

At the Law Office of Richard Roman Shum, Esq, our team of skilled Manhattan divorce attorneys may be able to help ensure that the asset division process is approached with diligence and fairness. By seeking the assistance of a New York divorce attorney, individuals can secure the guidance and representation they need to achieve a favorable outcome and move forward with confidence as they tackle property division during divorce proceedings. Contact us today at (646) 259-3416 to schedule a consultation.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/how-does-separate-property-become-marital-property-in-new-york/