How Does 50/50 Custody Work in New York?

50/50 custody is an arrangement that allows both parents to share parenting time equally. While this setup can benefit the child by maintaining strong relationships with both parents, it also requires careful planning and cooperation. Parents considering this type of custody should be aware of the factors that the court evaluates and how those decisions may impact their parenting responsibilities.

Understanding custody laws in New York can be challenging, especially when it comes to schedules, child support, and decision-making roles. Consulting with an experienced New York child custody lawyer may help parents protect their rights and create a plan that works best for their family. The Law Office of Richard Roman Shum, Esq. offers legal guidance for parents seeking fair custody solutions. Call (646) 259-3416 today to discuss your situation and explore your options.

What Does 50/50 Custody Mean in New York?

50/50 physical custody in New York means that both parents share roughly equal parenting time with their child. This arrangement allows each parent to have the child for about half of the time, ensuring they both remain actively involved in raising the child. Typically, this setup falls under joint physical custody, meaning the child spends an equal amount of time living with each parent. It is also often paired with joint legal custody, which grants both parents the authority to make significant decisions regarding the child’s education, healthcare, and general welfare.

In New York, the terms “shared custody” and “joint custody” are sometimes used to describe a 50/50 arrangement, but they can also refer to different legal custody setups, which are about which parent gets to make certain decisions for and about the child. When “joint custody” is mentioned, it often refers to joint legal custody unless specified otherwise. On the other hand, “physical custody” pertains to where the child resides. Understanding these distinctions is important when discussing custody agreements.

A 50/50 custody arrangement is just one of several possible parenting time divisions. Some parents may opt for a 60/40 or another split that better fits their circumstances. 

Is 50/50 Custody the Default in New York?

No, New York is not a “50/50 custody by default” state. The law does not automatically assume that an equal parenting time split is best for every child. Instead, courts determine custody based on the best interest of the child standard, evaluating what arrangement will promote the child’s health, safety, happiness, and overall well-being. There is no automatic preference for a perfectly equal split if it would not serve the child’s needs.

When evaluating custody, judges consider several key factors, including:

• Relationship with Each Parent: How bonded is the child to each parent? Who has been the primary caregiver?
• Parental Ability and Stability: Each parent’s ability to provide a safe, loving, and stable environment, considering mental and physical health, work schedules, and living situations.
• Child’s Needs: The child’s age, emotional well-being, special needs, or medical issues, and how each parent can meet those needs.
• Child’s Preference: If the child is mature enough to express a reasonable preference, the court may consider their wishes. While there is no set age in New York, older teens’ opinions typically carry more weight, though the judge makes the final decision.
• Consistency and Continuity: Courts prioritize stability, including maintaining school schedules and routines. If a 50/50 arrangement would disrupt the child’s life significantly, it may not be considered in their best interest.
• Parental Cooperation: A successful 50/50 arrangement requires parents to communicate and cooperate. If there is high conflict, equal time-sharing may not be appropriate.
• Geographical Proximity: Parents who live close to each other, especially within the same city or neighborhood, are more likely to make 50/50 custody work. Long distances or difficult commutes may make equal sharing impractical.
• History of Abuse or Neglect: Any history of domestic violence, child abuse, neglect, or substance abuse can significantly impact custody decisions. A parent with a history of these issues is unlikely to receive equal parenting time.
• Any Other Relevant Factors: Judges have the discretion to consider anything else that may impact the child’s well-being, including each parent’s willingness to foster a healthy relationship between the child and the other parent.

New York courts aim to keep both parents involved whenever it is safe and practical, but equal time-sharing is only ordered when it aligns with the best interest factors. If one parent cannot meet the child’s needs as well as the other or if there is significant conflict, the court may grant primary custody to one parent while the other receives scheduled visitation.

How to Get 50/50 Custody in New York

Securing a 50/50 custody arrangement in New York requires cooperation between parents or, if necessary, a strong legal case demonstrating that equal parenting time is in the child’s best interests. Whether through mutual agreement, mediation, or a court petition, parents must show that they can provide a stable and supportive environment while effectively sharing responsibilities.

Reaching a 50/50 Custody Agreement Without Court Intervention

The simplest way to establish 50/50 custody is for both parents to mutually agree on an arrangement that allows equal parenting time. Courts generally approve agreements that prioritize the child’s well-being, as long as they appear practical and reasonable.

Negotiating a Fair Parenting Plan with the Other Parent

Parents who can communicate effectively should discuss their goals, concerns, and scheduling preferences to create a plan that works for both households. Outlining the details in advance can help avoid misunderstandings and future disputes.

Using Mediation to Resolve Custody Disputes Amicably

If direct negotiation proves difficult, mediation can help parents work through conflicts with the assistance of a neutral third party. Mediators facilitate discussions to help parents reach a compromise on parenting time, holidays, and decision-making responsibilities. Mediation can also prevent lengthy court battles by fostering cooperation.

Drafting a Comprehensive 50/50 Custody Agreement

A well-drafted custody plan should address:

• A structured parenting time schedule (week-to-week rotation, 2-2-3 schedule, or alternating weeks)
• Holiday and vacation division to prevent conflicts in the future
• Responsibilities for school drop-offs, pickups, and transportation logistics
• Decision-making processes for education, healthcare, and other significant child-related matters
• Conflict resolution methods in case disagreements arise

Filing the Agreed Custody Plan with the Court

Even if parents reach an agreement privately, they should submit their plan to the court for approval. A judge will review the terms to ensure they align with the child’s best interests. Once approved, the agreement becomes a legally enforceable court order, reducing the risk of future disputes.

What to Do If One Parent Objects to 50/50 Custody

If parents cannot agree on shared custody, the parent seeking equal parenting time may need to take legal action through Family Court.

Filing a Custody Petition to Request 50/50 Parenting Time

A parent who wants 50/50 custody can file a formal custody petition in Family Court. The case will then proceed through legal steps such as mediation, temporary orders, hearings, and a final custody ruling.

Building a Strong Case for Joint Physical Custody

Parents seeking equal custody should be prepared to demonstrate to the court that shared parenting time serves the child’s best interests. Strategies to strengthen the case include:

• Showing consistent involvement in the child’s life, such as attending school events, medical appointments, and extracurricular activities.
• Demonstrating cooperation with the other parent, as courts prefer parents who support co-parenting rather than trying to exclude the other parent.
• Providing a detailed proposed schedule that proves equal custody is practical and beneficial for the child.

Seeking Legal Representation for a Contested Custody Case

In highly contested cases, hiring an experienced family law attorney can be beneficial. A lawyer can help gather supporting evidence, present arguments effectively, and advocate for the parent’s right to equal custody. Evidence may include:

• Witness statements from teachers, caregivers, or family members attesting to parental involvement
• Documentation of the parent’s role in daily caregiving, such as school communications, doctor visits, and extracurricular participation

Common 50/50 Custody Schedules in New York

When implementing a 50/50 custody arrangement, parents have several scheduling options to divide parenting time evenly. The best schedule depends on factors such as the child’s age, the parents’ work commitments, and how close the parents live to each other. Below are some of the most common 50/50 custody schedules used in New York, along with their benefits and potential challenges.

Alternating Weeks (7/7 Schedule)

The child spends one full week with Parent A, then one full week with Parent B. This schedule minimizes exchanges and provides consistency for school and activities. It works best when parents live close enough to manage mid-week responsibilities. However, for younger children, a full week away from one parent may be difficult.

2-2-3 Rotation Schedule

Parent A has Monday and Tuesday, Parent B has Wednesday and Thursday, and then Parent A gets Friday through Sunday. The following week, the schedule flips so Parent B gets the long weekend. This arrangement ensures the child never goes more than a few days without seeing either parent and allows both parents to have alternating weekends. Frequent transitions require coordination, especially if parents live far apart.

3-4-4-3 Split Schedule

One week, Parent A has Monday through Wednesday and Parent B has Thursday through Sunday. The next week, Parent A gets four days and Parent B gets three. This schedule reduces the number of transitions while maintaining a balanced division of time. The alternating four-day block requires careful tracking to ensure a smooth transition between households.

2-2-5-5 Mid-Week Split Schedule

Parent A has Monday and Tuesday, Parent B has Wednesday and Thursday, and they alternate the long weekends. This schedule creates a predictable weekday routine, with each parent consistently having the same weekdays each week. A structured approach like this can help children adjust to the custody arrangement with minimal disruption.

Making 50/50 Custody Work: Co-Parenting Tips

Agreeing to a 50/50 custody arrangement is just the first step—successfully managing it long-term requires effort, cooperation, and a focus on the child’s well-being. Co-parenting can be challenging, but with the right approach, it can provide stability and consistency for the child. Here are key strategies to help parents navigate shared custody successfully.

Keep Communication Open and Respectful

Co-parenting works best when parents communicate clearly and respectfully. Treat it like a business partnership centered around the child. Regular check-ins, whether through weekly meetings, shared journals, or co-parenting apps, can help parents stay informed about school, health, and schedule changes. If direct communication is difficult, co-parenting apps can track messages and schedules to minimize misunderstandings. Keeping the other parent updated about important developments, such as doctor’s appointments or school concerns, ensures both remain actively involved.

Stick to the Schedule but Stay Flexible

A consistent schedule helps create stability for the child. Parents should honor the agreed custody schedule, including drop-off times and transitions. However, life is unpredictable, and occasional schedule adjustments may be necessary. Being flexible when the other parent requests a swap—such as for a work emergency or special event—can prevent unnecessary conflict. Open communication about changes helps maintain a positive co-parenting relationship while keeping the child’s routine as steady as possible.

Maintain Consistent Rules and Routines

Children adjust more easily to shared custody when both homes have similar rules and routines. While every household will have some differences, maintaining consistency in bedtimes, screen time, homework expectations, and discipline can help prevent confusion. Parents should communicate about major rules and work together to create an environment where the child feels secure in both homes. A consistent approach also reduces the likelihood of the child playing one parent against the other with statements like, “But at Dad’s house, I don’t have to do that!”

Avoid Negative Talk About the Other Parent

Children do best when they feel both parents respect each other. Speaking negatively about the other parent in front of the child can create emotional distress and put them in the middle of adult conflicts. If issues arise, they should be discussed privately or with a counselor. Encouraging the child’s relationship with the other parent supports their emotional health and reinforces that they are loved and valued by both parents.

Be Open to Adjustments as the Child Grows

A custody arrangement that works for a toddler may not be ideal for a school-aged child with extracurricular activities. As children grow, their needs and schedules change, and parents should be open to revisiting the custody arrangement when necessary. If the current schedule is not working—such as if the child is struggling with transitions or falling behind in school—both parents can work together, potentially with a mediator, to make adjustments.

Put the Child’s Needs First

Every decision should be made with the child’s best interests in mind. Before reacting to a schedule change or disagreement, parents should consider how the situation affects the child. A child-focused approach helps parents find common ground, avoid power struggles, and create a healthy, supportive co-parenting dynamic.

Co-Parenting Strategy	Explanation
Keep Communication Open and Respectful	Regular check-ins and co-parenting apps help keep both parents informed.
Stick to the Schedule but Stay Flexible	Consistency is key, but occasional adjustments help maintain cooperation.
Maintain Consistent Rules and Routines	Similar rules in both homes provide stability and prevent confusion.
Avoid Negative Talk About the Other Parent	Speaking respectfully supports the child’s emotional well-being.
Be Open to Adjustments as the Child Grows	Custody arrangements should evolve to meet changing needs.
Put the Child’s Needs First	Decisions should prioritize the child’s well-being over conflicts.

How 50/50 Custody Affects Child Support in New York

A common assumption is that if parents share custody equally, neither will owe child support. However, in New York, that is not automatically the case. Custody, which determines parenting time, and child support, which ensures financial stability for the child, are separate legal considerations. Courts determine child support based on income and financial needs, not just the time split between parents.

The Child Support Standards Act and 50/50 Custody

Under New York’s Child Support Standards Act (CSSA), even when parenting time is split equally, one parent is typically designated the custodial parent for child support purposes. This is often the lower-earning parent, or if incomes are equal, the court may assign one parent this role. The higher-earning parent usually pays child support to the lower-earning parent to ensure the child maintains a comparable standard of living in both homes.

While the number of overnights does influence child support calculations, New York courts do not automatically eliminate child support in a 50/50 arrangement. If there is a significant income disparity, the court may still require payments from the higher-earning parent. In some cases, courts may deviate from the standard formula, but support is often still ordered to protect the child’s financial well-being.

Additional Support Considerations

Even if basic child support is reduced or waived in a true 50/50 split, parents may still be responsible for sharing additional child-related expenses such as:

• Health insurance premiums
• Uncovered medical expenses
• Daycare and childcare costs
• Extracurricular activities and school-related fees

These costs are typically divided in proportion to each parent’s income, ensuring that both contribute fairly to the child’s overall needs.

Can Parents Agree to No Child Support in a 50/50 Custody Arrangement?

Parents can negotiate child support terms in their settlement agreement. If both parents have similar incomes and can financially support the child in their respective homes, they may agree that neither will pay support. In such cases, a judge may approve the arrangement as long as it adequately meets the child’s needs. However, if there is a significant income gap, a “no support” agreement may not be accepted unless both parents can demonstrate that the child will not experience financial hardship in either home.

Protecting Your Custody Rights with the Law Office of Richard Roman Shum, Esq.

A 50/50 custody arrangement can provide children with stability and meaningful relationships with both parents, but it also requires careful planning and cooperation. Understanding how New York courts approach shared custody, child support, and co-parenting responsibilities can help parents navigate the process and make informed decisions.

If you need legal guidance in establishing or modifying a custody arrangement, the Law Office of Richard Roman Shum, Esq. is here to help. With experience in New York family law, Attorney Richard Roman Shum provides strategic support for parents seeking fair custody solutions. Call (646) 259-3416 today to schedule a consultation and take the next steps toward protecting your parental rights.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/how-does-50-50-custody-work-in-new-york/

Is Virtual Infidelity a Ground for Divorce in New York?

The way we communicate, socialize, and build relationships has been drastically transformed by technology. Virtual platforms and online interactions have complicated the common conception of infidelity. These technological evolutions also complicate previously more straightforward questions about infidelity within a marriage, what can be used against you in a divorce, and the potential legal consequences. This article explores whether virtual infidelity can be considered a valid reason for divorce in the State of New York.

Dealing with divorce and its many aspects, especially in relation to emerging issues like virtual infidelity, can be overwhelming. New York has specific statutes that govern divorce, making it crucial to seek the guidance of a knowledgeable and experienced New York divorce attorney. Manhattan divorce lawyer Richard Roman Shum can provide valuable assistance by offering insights into the legal framework surrounding virtual infidelity, assessing its relevance in your specific divorce case, and helping individuals understand their rights and available options. From gathering evidence to advocating for clients’ interests, our team of Manhattan divorce lawyers can handle the challenges of New York divorce law and offer personalized guidance tailored to each individual’s circumstances. Contact the Law Office of Richard Roman Shum, Esq. today at (646) 259-3416 to schedule a consultation.

Definition and Types of Virtual Infidelity

Virtual infidelity can be defined as engaging in emotionally or sexually intimate interactions via the internet, without the partner’s knowledge or consent, that violates the trust and boundaries of a committed relationship. The nature of these interactions can range from casual flirtations to deep emotional connections or explicit sexual conversations. Given the diverse nature of online interactions, virtual infidelity can take different forms:

• Online flirting: This includes sending flirtatious messages, suggestive emojis, or engaging in playful banter with someone other than the partner. While seemingly innocuous, these interactions may lead to more intense emotional connections if unchecked.
• Emotional affair: An emotional affair happens when one person forms a deep emotional connection with someone else, often sharing intimate thoughts, feelings, and secrets that are typically reserved for their committed partner.
• Cybersex or sexting: This involves sending explicit sexual content, such as messages, images, or videos, to someone other than the partner. This is considered as a form of virtual infidelity because it breaches the boundaries of a committed relationship by engaging in sexually explicit conversations and fantasies with another person.
• Online dating or hookup apps: Using these platforms to look for potential partners or engage in conversations with other users can be considered virtual infidelity, as it expresses a desire to explore relationships or encounters outside of the committed partnership.

Types of Virtual Infidelity	Description
Online flirting	Sending flirtatious messages, suggestive emojis, or engaging in playful banter with someone other than the partner
Emotional affair	Forming a deep emotional connection with someone else, often sharing intimate thoughts, feelings, and secrets typically reserved for the committed partner
Cybersex or sexting	Sending explicit sexual content, such as messages, images, or videos, to someone other than the partner
Online dating or hookup apps	Using platforms to look for potential partners or engage in conversations with other users outside of the committed partnership

Common Reasons for Virtual Infidelity

The reasons for virtual infidelity may vary from person to person but some common factors include the following:

• Access and anonymity: The internet provides an easily accessible platform for people to engage in secretive interactions without the fear of being caught.
• Emotional dissatisfaction: A person may seek out online interactions due to feelings of emotional neglect or dissatisfaction in their current relationship.
• Sexual dissatisfaction or exploration: A partner may use the internet to explore sexual fantasies or desires that they do not feel comfortable sharing with their partner or that they cannot fulfill within their current relationship.
• Escapism: Virtual infidelity may serve as a temporary means of escape from the stress, monotony, or challenges faced in the real world.
• Validation and self-esteem: Engaging in online affairs or flirtations can offer a sense of validation or boost one’s self-esteem, particularly if they feel undervalued or unappreciated in their relationship.

Psychological Impact of Virtual Infidelity on Relationships

Virtual infidelity can have serious consequences on relationships, particularly in terms of trust, security, and emotional connection. Some of the potential impacts include:

• Betrayal and loss of trust: Discovering a partner’s involvement in online infidelity can lead to feelings of betrayal, resulting in the erosion of trust between partners, which can be difficult, if not impossible, to rebuild.
• Guilt and shame: The partner engaging in virtual infidelity may experience feelings of guilt and shame for their actions, which can in turn impact their emotional well-being and ability to form genuine connections within their relationship.
• Jealousy and insecurity: The offended partner may develop feelings of jealousy and insecurity, questioning their self-worth, attractiveness, and desirability.
• Communication breakdown: Virtual infidelity can lead to a breakdown in open and honest communication between partners, affecting their ability to resolve issues and grow together as a couple.
• Relationship dissatisfaction: The strain caused by virtual infidelity can lead to increased dissatisfaction and unhappiness in the relationship. In some cases, this may ultimately result in the end of the partnership.

Virtual infidelity is a challenging issue that can have significant consequences on relationships. Understanding the various types of virtual infidelity, the reasons behind it, and its psychological impact on a couple is crucial for maintaining trust, open communication, and emotional connection in today’s digitally connected world.

Manhattan divorce attorney

Virtual Infidelity as a Ground for Divorce in New York

In recent times, the usage of technology and social media platforms has transformed human relationships. One of the dark sides of this transformation is the prevalence of virtual infidelity, which has become a point of contention when it comes to divorce proceedings. As society and technology continue to evolve, how has virtual infidelity been treated by courts in New York State, particularly when it comes to divorce cases?

Is Virtual Infidelity Considered Adultery?

Given the prevalence of virtual infidelity, the first question that arises is whether it can be considered adultery under New York law. Adultery is defined as one spouse engaging in a voluntary sexual relationship with a person other than their spouse. In New York, adultery is one of the legal grounds for seeking a divorce.

Underestimating the magnitude of the repercussions stemming from an online affair would be a mistake, as virtual infidelity has the potential to cause substantial emotional distress and upheaval comparable to that of a physical affair. If you are considering seeking a divorce based on virtual infidelity, it is crucial to bear in mind the following points:

• In New York, virtual infidelity is acknowledged as adultery under the law.
• It is imperative to collect evidence that supports the existence of the affair.
• The court will assess various factors to decide whether to grant a divorce on these grounds.

How Virtual Infidelity Could Factor into Divorce Cases

New York State introduced no-fault divorce in 2010, allowing couples to divorce under the grounds of irretrievable breakdown of the marriage for at least six months. In no-fault divorce cases, spouses do not need to cite a specific reason, such as adultery, to end a marriage.

In these scenarios, instances of virtual infidelity could contribute to a case for demonstrating the irretrievable breakdown of the relationship. It can be considered as evidence in divorce proceedings and may influence factors such as the division of assets or custody agreements.

Furthermore, if virtual infidelity leads to real-world adultery, then it could become grounds for an adultery-based divorce. In these cases, it would be essential to provide sufficient evidence that physical sexual relations occurred between the spouse and another person.

Steps to Legally Collect Evidence of Virtual Infidelity

When suspecting virtual infidelity, gathering evidence requires adherence to legal standards to ensure it’s admissible in court. Here are critical steps and types of evidence you can collect:

• Screenshots: Capture clear screenshots of relevant online interactions. These should include dates and times if visible. Remember, screenshots serve as a potentially powerful form of proof but must correlate with other evidence to establish context. However, screenshots alone may not be sufficient without additional verification, as courts may question authenticity.
• Metadata: This involves critical details such as timestamps, IP addresses, and the origin of digital communications. Metadata can validate the authenticity of screenshots or logs, linking them to specific devices and accounts. Obtaining metadata may require forensic analysis or legal access to accounts.
• Subpoenaed Records: For more concrete evidence, you may need records directly from service providers. This requires a subpoena, compelling the company to release detailed information such as logins, IP addresses, and message histories. However, private messages are typically protected under the Stored Communications Act (18 U.S.C. § 2701-2712) and require a court order for release. Legal procedures must be followed to access these records.
• Digital Forensics Testimony: Professionals in digital forensics can analyze data and testify about the nature and integrity of the evidence. Their testimony can clarify technical aspects and affirm the evidence’s validity under scrutiny.

Adhering to New York’s strict authentication rules (NY CPLR 4518) is crucial. This rule requires that electronic records be shown to have been maintained in the ordinary course of business to qualify as reliable evidence.

Be cautious about how you obtain evidence. Illegally accessed information, such as hacking into a spouse’s private accounts, can be deemed inadmissible and potentially illegal under laws like the Electronic Communications Privacy Act. Always consult with a legal professional to guide the collection process without violating privacy laws, avoiding the risk of “fruit of the poisonous tree”, where illegally obtained evidence taints the case.

Collecting evidence of virtual infidelity must be done methodically and legally to support your case effectively in a New York court.

New York Adultery Laws

In accordance with the New York State Penal Law Section 255.17, adultery was defined as engaging in sexual intercourse with another person while either individual had a living spouse, classifying it as a Class B misdemeanor. However, in April 2024, the New York legislature repealed this 117-year-old law, effectively decriminalizing adultery in the state. ​

Despite this decriminalization, adultery remains a fault-based ground for divorce under New York Domestic Relations Law § 170(4). Proving adultery in divorce proceedings requires clear and convincing evidence, often necessitating testimony from a third party, as direct evidence is typically unavailable. ​

If you find yourself as the wronged individual due to your spouse’s extramarital affairs, this circumstance could potentially play to your benefit in the context of divorce cases. This is because it can have significant financial implications for matters like alimony arrangements and the equitable distribution of shared belongings and financial obligations.

Navigating New York’s adultery laws can be challenging, but with the help of a Manhattan divorce lawyer, you can secure the support you need. At the Law Office of Richard Roman Shum, Esq., our lawyers are well-versed in the nuances of adultery cases, providing compassionate guidance and strategic counsel to protect your interests. Contact us to help you achieve a favorable resolution in your divorce case while upholding your rights and securing your future.

Does Adultery Affect Divorce in NY?

In New York, adultery can indeed influence the outcome of divorce proceedings. New York allows for divorces to be filed on both fault and no-fault grounds, and adultery is recognized as a fault ground. This means that if one spouse can prove that the other committed adultery, it can significantly impact various aspects of the divorce settlement.

Firstly, adultery may affect the equitable distribution of marital property. Although New York typically divides marital assets fairly between spouses, proof of adultery could potentially influence the court’s decision on what is considered ‘fair,’ possibly resulting in a less favorable division for the adulterous spouse.

Secondly, adultery can play a critical role in determining alimony or spousal support. The court may consider the adultery when deciding whether to award alimony and the amount. Typically, if the adultery has financially impacted the non-adulterous spouse or if it contributed to the breakdown of the marriage, this could lead to changes in alimony arrangements.

Moreover, adultery could influence decisions related to child custody, support, and visitation rights. While these decisions are primarily based on the best interests of the child, the behavior of the spouses during the marriage, including any instances of adultery, might be considered when assessing the suitability of each parent in custody matters.

Therefore, committing adultery in New York can substantially impact not only the financial aspects of a divorce but also child-related considerations, making it a significant factor in divorce proceedings.

Impact of Virtual Infidelity on Divorce Outcomes

Virtual infidelity is the act of one partner engaging in a digital or online relationship outside of their current marriage or committed partnership. With the prevalence of social media, chat rooms, and dating apps, it is becoming increasingly common for couples to experience virtual infidelity within their relationships. While traditional notions of infidelity often involve physical relationships outside of marriage, virtual infidelity can also lead to the breakdown of trust between partners and contribute to the dissolution of a marriage. As such, it is also possible for virtual infidelity to impact

Division of Assets and Marital Property

In many divorce cases, a significant focus is on the division of assets and marital property, which can include real estate, vehicles, retirement accounts, and other assets accumulated during the marriage. In some jurisdictions, the division of assets can be heavily influenced by evidence of infidelity on the part of one spouse. However, virtual infidelity alone may not directly impact the division of assets in the same way that physical infidelity could.

Whether virtual infidelity will impact the division of assets depends largely on the specific laws of the jurisdiction in which the divorce is taking place. In New York, evidence of infidelity (including virtual infidelity) can be presented in court to support a claim for an unequal division of assets in cases where adultery is the grounds used to file a divorce. 

However, if the spouses decide to use no-fault grounds to file the divorce, the specific reasons for the divorce (such as virtual infidelity) may not directly impact the division of assets. In these cases, the judge may decide based on factors such as the length of the marriage, the contributions of each spouse, and the needs of each spouse moving forward.

Child Custody and Visitation Rights

Another critical aspect of divorce proceedings is the determination of child custody and visitation rights. While virtual infidelity may not directly impact the division of assets, it could play a role in a judge’s determination of the best interests of the child or children involved.

In cases where one spouse is engaging in virtual infidelity, the other spouse may argue that such behavior demonstrates a lack of judgment or poor character on the part of the unfaithful partner. Depending on the specific circumstances of each case, a judge may weigh this information when considering the child’s best interests and determining which parent should receive primary custody and how visitation rights should be allocated.

For virtual infidelity to have an impact on child custody and visitation rights, there will likely need to be evidence of a direct connection between the infidelity and the child’s best interests. For example, if it can be proven that one spouse exposed the child to inappropriate online content or neglected their parenting duties due to their online activities, this may be more likely to sway a judge’s decision.

Spousal Support and Alimony

Spousal support and alimony are financial payments made from one spouse to the other following a divorce. In some cases, these payments are intended to help the receiving spouse maintain a certain standard of living or to provide financial support while they transition to a post-divorce life.

In a fault-based divorce, evidence of virtual infidelity may be taken into account when determining the amount of support or alimony payments. The unfaithful spouse may be required to make higher payments to the wronged spouse as a form of restitution.

In a no-fault divorce, virtual infidelity may not directly impact spousal support or alimony. However, judges may still consider factors such as the length of the marriage, the income potential of each spouse, and the financial needs of each spouse when determining an appropriate amount of support or alimony.

Getting the Legal Help of an Experienced Manhattan Divorce Lawyer

When facing a situation involving virtual infidelity and contemplating a divorce in New York, seeking the guidance of a Manhattan divorce lawyer can be immensely beneficial. A skilled divorce attorney can provide essential legal counsel and representation throughout the divorce process, ensuring that your rights are protected and advocating for your best interests.

Attorney Richard Roman Shum and our team of experienced Manhattan divorce lawyers may be able to assess the circumstances surrounding your case, gather evidence if necessary, and effectively argue for your position during negotiations or court proceedings. Contact the Law Office of Richard Roman Shum, Esq. today at (646) 259-3416 to learn more about how we can help.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/is-virtual-infidelity-a-ground-for-divorce-in-new-york/

Understanding the Evidence Required to Obtain an Order of Protection in New York

Obtaining an order of protection can be a crucial step in safeguarding your safety and well-being. An order of protection is a legal order issued by a court that prohibits an individual from engaging in harmful behavior toward another person, and it can provide vital protections for victims of domestic violence, harassment, stalking, or other forms of abuse.

First, it is important to understand the legal basis for obtaining an order of protection in New York. The Family Court Act provides for two types of orders of protection: an order of protection in family court and a criminal court order of protection. Family court orders of protection are typically obtained in cases where there is no pending criminal case or where the alleged conduct does not constitute a criminal offense.

In New York Family Court, the victim of abuse must file a Family Offense Petition, alleging at least one of the available Family Offenses outlined in the Family Court Act. If you are experiencing domestic violence or abuse in New York and need assistance in obtaining an order of protection, reach out to our team of Manhattan family law attorneys at the Law Office of Richard Roman Shum. We are committed to advocating for victims of domestic violence and helping them obtain the legal protections they need to stay safe. Call us today at (646) 259-3416 to schedule a consultation.

What is a Family Offense?

Family offenses are defined in the Family Court Act as offenses committed between certain family or household members, including spouses, former spouses, persons related by blood or marriage, persons who have a child in common, and persons who are or have been in an intimate relationship. Family offenses include, but are not limited to:

• Disorderly conduct: This includes any behavior that is likely to cause a public disturbance or that is intended to provoke a fight or argument. Disorderly conduct can include physical violence, threatening behavior, or verbal abuse.
• Harassment: This offense involves any behavior that is intended to annoy, alarm, or harass another person. Harassment can include repeated phone calls, emails, or text messages, as well as following or stalking a person.
• Menacing: This offense involves threatening to cause physical harm to another person. Menacing can include brandishing a weapon or making verbal threats of violence.
• Assault: This offense involves causing physical harm to another person. Assault can include hitting, slapping, punching, or any other physical act that causes injury.
• Sexual assault: This offense involves any sexual act that is performed without the victim’s consent. Sexual assault can include rape, sexual abuse, or any other unwanted sexual act.

Types of Orders of Protection

When we have filed your Family Offense Petition describing how you have suffered one or more of the above Family Offenses, the Court may decide to hear from us Ex Parte, which means before having notified and without the participation of the alleged abuser. In cases of serious abuse, where the victim reasonably believes they are in danger of imminent harm, the Court may issue a Temporary Order of Protection to protect you. In those cases, the Court orders the Temporary Order of Protection and your Family Offense Petition be served upon the alleged abuser and sets a date for both parties to come to Court, in-person or virtually. Those papers may be served by a uniformed New York City Sheriff. 

How Family and Criminal Court Handle Orders of Protection in New York

In New York, orders of protection are legal measures used by courts to prevent violence and protect individuals in situations involving domestic issues or criminal activity. These orders are processed through either family court or criminal court, depending on the circumstances surrounding the case.

Family court orders of protection are typically issued during civil proceedings. They aim to address domestic violence or threats within family relationships or between intimate partners. The court can impose various restrictions through these orders, such as prohibiting contact between the parties, granting custody of children, or even ordering the removal of one party from a shared residence. These orders serve to safeguard victims from further harm and remain confidential to protect the privacy of the individuals involved.

On the other hand, criminal court orders of protection are directly linked to criminal cases. These orders are issued as a condition of a defendant’s release on bail or their own recognizance. They are typically granted when a person has been charged with a crime, and the order remains in effect for the duration of the criminal case. Such orders are crucial in protecting victims by legally restricting the accused’s actions until the case is resolved.

Both types of orders of protection are crucial in their respective domains, providing necessary safety measures tailored to the specific needs of the situation. Whether issued in family or criminal court, each order is aimed at preventing further violence or harassment, ensuring that individuals can seek legal protection from threats and abuse in their personal and public lives.

How To Get An Order Of Protection In NY?

A protection order is an official legal document issued by either a criminal court or a family court within the state of New York. Its purpose is to instruct an individual to cease engaging in harmful behavior towards you or to maintain a certain distance from you, and an attorney can assist you in pursuing this legal measure.

In the Family Court, you, as the party seeking protection, are referred to as the “petitioner,” while the person causing problems is identified as the “respondent.”

To initiate this legal process, it is recommended to consult with an attorney who focuses on family law. An attorney can guide you through the process of obtaining a protection order. They can accompany you to the family court and work with the Family Court Clerk to obtain a family offense petition. They can assist you in completing the petition comprehensively, ensuring that all relevant details are included, and can help you submit it on the same day.

Once your attorney has submitted the family offense petition, they will work with you to prepare for a meeting with the judge. In urgent situations, your attorney can request a prioritized meeting with the judge to seek a temporary protective order until a formal court date is scheduled. If you have concerns about the safety of your children, your attorney will help you present these concerns to the judge during the meeting.

During the meeting with the judge, your attorney will represent your interests. They will respond to the judge’s questions on your behalf and provide a clear explanation of why you or your children require a temporary order of protection. If there is a valid reason, the judge, based on your attorney’s arguments, will grant a temporary order of protection. Make sure to discuss with your attorney the coverage of the protection order to fully understand its implications. Subsequently, your attorney will work with you to prepare for a court date to determine whether the protection order should remain in effect. Both you and your attorney will attend this hearing, where your attorney will advocate for your continued safety and well-being.

If you’re seeking an order of protection in New York, handling the legal process can be overwhelming. At the Law Office of Richard Roman Shum, Esq., our skilled Manhattan family law attorneys can guide you through the process, advocating for your rights and safety. We understand the urgency of your situation and can provide the guidance needed to secure the necessary legal measures swiftly. Contact us today to take the first step toward securing the protection you deserve.

Evidence Required to Obtain an Order of Protection

In the court appearances that follow, we will have to use evidence to convince the judge to grant a Permanent Order of Protection. Case law and the Family Court Act provide guidance on the evidence required to obtain an Order of Protection in New York. 

“To prevail on her family offense petition, petitioner bore the burden of establishing, by a fair preponderance of the evidence, that respondent committed one of the enumerated family offenses set forth in Family Ct Act § 821 (1) (a)” (Matter of Allen v Emery, 187 AD3d 1339, 1340 [2020] [citation omitted  ]; see Family Ct Act § 832; Matter of Marianna K. v David K., 145 AD3d at 1362; Matter of Elizabeth X. v Irving Y., 132 AD3d 1100, 1101 [2015]). “The question of whether a family offense has been committed presents a factual issue to be resolved by Family Court, and Family Court’s determinations regarding the credibility of witnesses are accorded great weight” (Matter of Allen v Emery, 187 AD3d at 1339 [citation omitted]; see Matter of Jasmin NN. v Jasmin C., 167 AD3d 1274, 1276 [2018]; Matter of Shana SS. v Jeremy TT., 111 AD3d 1090, 1091 [2013], lv denied 22 NY3d 862 [2014]).

The evidence required may include, but are not limited to:

• Affidavits or sworn statements: The petitioner may submit affidavits or sworn statements describing the incidents of abuse or violence, including dates, times, and specific details of the incidents. Affidavits from witnesses who have firsthand knowledge of the abuse may also be submitted.
• Police reports: If the abuse or violence has been reported to law enforcement, police reports can serve as evidence of the incidents.
• Medical records: Medical records documenting injuries or medical treatment related to the abuse or violence can be presented as evidence.
• Photographs or videos: Photographs or videos of injuries, damage to property, or other evidence of abuse or violence can be powerful evidence in obtaining an order of protection.
• Other documentation: Any other relevant documentation, such as emails, text messages, social media posts, or recordings that support the allegations of abuse or violence, may also be presented as evidence.

Orders of Protection in New York	Examples of Required Evidence
Temporary Order of Protection	Affidavits, Police Reports
Permanent Order of Protection	Medical Records, Police Reports, Witness Statements, Photos of Injuries

It’s important to note that hearsay evidence, which is generally an out-of-court statement offered to prove the truth of the matter asserted, may be admissible in family court proceedings for orders of protection. However, the admissibility of hearsay evidence in family court is subject to certain limitations and requirements, as established by case law.

Obtaining an order of protection in New York requires providing evidence of abuse or other family offenses. The Family Court Act outlines several types of family offenses that can serve as the basis for an order of protection. If you or someone you know is experiencing abuse or harassment, it is important to seek legal advice from an experienced family law attorney. At the Law Office of Richard Roman Shum, Esq., our team of Manhattan family law attorneys can help you understand the legal system and obtain the protection you need to stay safe. Contact us today at (646) 259-3416 to schedule a consultation.

If you or someone you know is experiencing domestic violence, harassment, or other forms of abuse, you can contact the National Domestic Violence Hotline at 1-800-799-SAFE (7233) for help and support.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/understanding-the-evidence-required-to-obtain-an-order-of-protection-in-new-york/

Who is the Plaintiff in a Divorce?

Facing divorce proceedings can often feel overwhelming, especially when faced with legal jargon that may seem foreign. One such term, “plaintiff,” carries significant weight in divorce proceedings. But who exactly is the plaintiff in a divorce? In the simplest terms, the plaintiff refers to the spouse who initiates the divorce process or files the divorce papers. However, this role entails more than just setting the ball rolling; it involves responsibilities and steps that can influence the entire course of the divorce.

Filing for divorce first can impact various aspects of the case, including jurisdictional advantages, strategic positioning in financial and custody matters, and the ability to set the initial terms of the divorce petition. The plaintiff must file the necessary legal documents, serve them to the other spouse, and comply with procedural requirements throughout the process.

Understanding the role and responsibilities of the plaintiff is crucial to managing divorce proceedings effectively. If you’re considering filing for divorce in New York and would like to understand more about the role of the plaintiff, you should consult with an experienced divorce lawyer. At the Law Office of Richard Roman Shum, Esq, our team of Manhattan divorce lawyers may be able to provide guidance tailored to your unique situation, ensuring you’re well-equipped to navigate the divorce process and make informed decisions. Contact us today at (646) 259-3416 to discuss your case and learn more about your rights and responsibilities as a potential plaintiff in a divorce.

Legal Definition of the Plaintiff in New York Divorce

When a marriage dissolves and partners part ways, typically, one spouse takes the lead in instigating the divorce proceedings. This spouse is referred to as the plaintiff in the divorce context, given their role in filing the divorce papers and initially presenting the case in court. Conversely, the other spouse, who receives the divorce papers from the plaintiff, is designated as the defendant.

Plaintiff Vs. Defendant

When it comes to divorce proceedings, the terms “plaintiff” and “defendant” are central to the process. The plaintiff is the spouse who initiates the action by filing a Petition for Divorce. This action formally requests the dissolution of the marriage from the court. It’s important to note that the filing of the petition by one spouse does not always suggest an adversarial stance; quite often, the decision to divorce is mutual, yet the legal system requires one party to file the petition.

On the flip side of the legal coin is the defendant, who is the spouse that the divorce papers are served to following the plaintiff’s filing. In response to the petition, the defendant takes on the role of the respondent. Their reaction to the petition is a key element in the divorce process as it can influence the direction and tone of the proceedings.

The distinction between plaintiff and defendant is more than mere legal jargon; it delineates the starting positions of each spouse within the framework of the legal system. Each role carries specific responsibilities and rights throughout the divorce process. Understanding who is who in this legal dance is essential for both parties as they untangle their marital ties through the structured steps of the legal system. This understanding ensures that both parties are better prepared to navigate through legally ending a marriage.

Divorce Eligibility and Requirements

Being the plaintiff in a divorce case isn’t merely about deciding to end the marriage. There are specific legal requirements that must be met.

Residency Requirements for the Plaintiff

One of the primary eligibility criteria to file for divorce in New York is residency. The plaintiff must meet certain residency requirements. According to the New York Domestic Relations Law, at least one of the following conditions must be met:

• The couple was married in New York, and either spouse has been a resident of the state for a continuous period of one year prior to filing.
• The couple lived as husband and wife in New York, and either spouse has been a resident of the state for a continuous period of one year prior to filing.
• The grounds for divorce occurred in New York, and either spouse has been a resident of the state for a continuous period of one year prior to filing.
• The grounds for divorce occurred in New York, and both spouses are residents of the state at the time of filing.
• Either spouse has been a resident of the state for a continuous period of two years prior to filing.

If any of these conditions are met, the plaintiff is eligible to file for divorce in New York.

Grounds for Divorce in New York

Grounds for divorce are the legally recognized reasons for which a divorce may be granted. In New York, the plaintiff may file for divorce under fault or no-fault grounds.

No-fault divorce, which became legal in New York in 2010, allows a spouse to petition for divorce if the marriage has been irretrievably broken for at least six months. This ground is typically used when both spouses agree to end the marriage and can be the least confrontational option.

Fault grounds, on the other hand, require the plaintiff to prove specific wrongdoing by the other spouse. These can include:

• Cruel and inhuman treatment
• Abandonment for a continuous period of one year or more
• Imprisonment for more than three years subsequent to the marriage
• Adultery
• Living apart pursuant to a decree or judgment of separation for a period of one or more years

Choosing the grounds for divorce is a critical decision as it can influence the course of the divorce proceedings and potentially affect the outcome on matters such as custody, support, and property division.

Process of Filing for Divorce

The process of filing for divorce as the plaintiff begins with the preparation of the necessary legal documents. These typically include the Summons with Notice or the Summons and Complaint.

• Summons with Notice: This document provides the defendant with general notice that a divorce action has been initiated. It does not contain detailed information about the plaintiff’s claims or demands but does state the grounds for divorce and any ancillary relief sought (e.g., child custody, spousal support, etc.)
• Summons and Complaint: This document is more detailed than the Summons with Notice. It includes specific allegations and the relief sought by the plaintiff, providing the defendant with a full understanding of the claims brought against them.

These documents must be carefully prepared, ensuring that all necessary information is included and presented accurately. Failure to do so can result in unnecessary delays or legal complications down the line.

Filing the Documents with the Court

Once the divorce documents are prepared, they must be filed with the County Clerk’s Office in the county where either spouse resides. This process involves submitting the original documents along with any required copies and paying the requisite filing fees

Upon filing, the county clerk provides the plaintiff with an index number. This number is unique to the case and is used to track its progress through the court system. It’s important for the plaintiff to keep a record of this number and to include it on all subsequent documents related to the case.

Serving the Divorce Papers

After the documents have been filed and the index number obtained, the next step is to serve the divorce papers on the defendant. This process, known as service of process, is critical to ensuring that the defendant is formally notified of the divorce proceedings and given an opportunity to respond.

In New York, the divorce papers must be served by someone who is not a party to the case and is at least 18 years old. This could be a professional process server, sheriff, or even a friend or relative. The service must be done personally, meaning that the papers are handed directly to the defendant.

There are strict rules governing service of process, including timeframes within which the service must be completed and the manner in which proof of service is provided to the court. Failure to properly serve the divorce papers can result in the dismissal of the case.

Waiting for the Defendant’s Response

Once the defendant has been served, they have a specific period (usually 20 or 30 days, depending on the method of service) to respond to the divorce papers. This response may involve agreeing to the divorce, contesting it, or submitting a counterclaim.

During this period, the plaintiff must wait for the defendant’s response before proceeding further with the divorce. If the defendant does not respond within the specified timeframe, the plaintiff may be able to move forward with the divorce on a default basis, meaning that the divorce may be granted without the defendant’s participation.

Filing for divorce as the plaintiff involves several key steps: preparing the necessary documents, filing them with the court, serving them on the defendant, and waiting for the defendant’s response. Each of these steps is crucial to the progression of the divorce proceedings and requires careful attention to detail and an understanding of the relevant legal rules and procedures.

Responsibilities During the Divorce Proceedings

The role of the plaintiff in a divorce case is not just limited to initiating the process. As the plaintiff, you have several responsibilities throughout the divorce proceedings that can profoundly impact the outcome of the case. These responsibilities span across legal and financial obligations, cooperating with the court, maintaining open and honest communication with your attorney, and attending court hearings.

Legal and Financial Obligations

As the plaintiff, you have an array of legal and financial obligations to meet. You’re required to provide accurate and complete information about your finances, including income, assets, debts, and expenses. This information forms the basis for various decisions, including the division of property, child support, and alimony. Misrepresentation or omission of financial details can lead to penalties and may adversely affect your case.

You’re also legally obligated to follow court orders, such as temporary custody orders or restraining orders, regardless of your personal feelings or disagreements. Failure to abide by these orders can result in legal consequences and damage your standing in the court’s eyes.

Cooperation with the Court

Cooperating with the court is another crucial responsibility. This involves complying with all court rules and protocols, providing requested documents in a timely manner, and responding promptly to court correspondence.

You may also be required to participate in mandatory mediation or counseling sessions as ordered by the court. These sessions aim to facilitate amicable resolution on contentious issues such as child custody or property division. Your willingness to cooperate in these sessions demonstrates to the court your commitment to the process and can work in your favor.

Attorney Communication

Maintaining transparent and regular communication with your attorney is crucial. As the plaintiff, it is your responsibility to keep your attorney informed about all relevant facts and developments. This includes changes in your financial situation, personal life, or any other significant events that could impact your case.

Being open and honest with your attorney allows them to represent you effectively and strategize appropriately. Remember, your attorney is bound by attorney-client privilege, which means they cannot disclose your confidential information without your consent.

Additionally, it’s important to be responsive to your attorney’s requests for information and to follow their advice. They have the legal knowledge to guide you through the process, and their advice is typically based on what is in your best interest.

Attending Court Hearings

Finally, attending all court hearings and meetings is a critical responsibility. Your presence is often required at various stages of the divorce process, such as temporary hearings, pre-trial conferences, mediation sessions, and the final trial.

Your attendance not only demonstrates your commitment to the process but also gives you the chance to have your voice heard. Missing these hearings can delay the proceedings, and repeated absences can potentially lead the court to make decisions in your absence.

Responsibilities During Divorce Proceedings	Description
Legal and Financial Obligations	Provide accurate financial information (income, assets, debts, expenses) for decisions on property division, child support, and alimony. Follow court orders, including temporary custody or restraining orders.
Cooperation with the Court	Comply with court rules and protocols. Provide requested documents promptly. Respond to court correspondence. Participate in mediation or counseling sessions as ordered.
Attorney Communication	Maintain open and honest communication with your attorney. Keep them informed about relevant facts and developments. Be responsive to their requests for information and follow their advice.
Attending Court Hearings	Attend all required court hearings and meetings, including temporary hearings, pre-trial conferences, mediation sessions, and the final trial.

How the Type of Divorce Impacts the Plaintiff’s Responsibilities

The type of divorce determines the plaintiff’s responsibilities, strategy, and overall approach to the process. In New York, divorces fall into two main categories: uncontested and contested, each with distinct legal and procedural implications.

In an uncontested divorce, the plaintiff’s role is relatively straightforward. The plaintiff is responsible for filing a Summons with Notice or a Summons and Complaint with the County Clerk’s Office, serving the other spouse within 120 days, and submitting the signed settlement agreement to the court. Procedural requirements are minimal, and the court’s role is primarily limited to reviewing documents before issuing the final judgment. This type of divorce is generally faster and less expensive, often concluding within a few months. The plaintiff must complete and file all necessary paperwork correctly to avoid delays.

In a contested divorce, the plaintiff’s responsibilities increase significantly. Disputes over assets, custody, or support require legal arguments, negotiation, and possibly a trial. The plaintiff must file the required summons and complaint, serve the defendant, respond to counterclaims, and gather supporting evidence. The process includes a Preliminary Conference within 45 days, discovery, and possibly a Compliance Conference before trial. Court hearings, document requests, and legal motions extend the timeline, often exceeding a year, and significantly increase costs due to legal fees and court expenses.

Plaintiffs should consider their long-term goals and the dynamics of their relationship with their spouse when choosing the type of divorce. Opting for an uncontested divorce, when feasible, can save time, reduce costs, and generally lessen the emotional strain on all involved parties. However, if significant disagreements exist, a contested divorce might be inevitable. In such cases, preparing thoroughly and aligning with a knowledgeable Manhattan divorce lawyer is crucial to effectively manage the increased demands of the process.

Plaintiffs are advised to assess their situation critically and select a divorce process that aligns with their specific needs and circumstances, considering both immediate and future implications of their decisions.

Challenges and Considerations for the Plaintiff

Filing for divorce and navigating the subsequent proceedings can be fraught with challenges, both emotionally and legally. As the plaintiff, you must be prepared to handle these challenges and make critical decisions that can greatly impact your future.

Dealing with Contested Divorce

When the defendant contests the divorce, the proceedings can become more challenging and potentially contentious. This may involve disputes over the grounds for divorce, disagreements over child custody or support, or conflicts over the division of marital property. As the plaintiff, you may need to gather evidence to support your case, work closely with your attorney to develop a legal strategy, and potentially prepare for a trial.

Child Custody and Support

If you and your spouse have children, matters of child custody and support can be among the most challenging aspects of the divorce process. As the plaintiff, you will need to consider the best interests of your children when making decisions about custody and visitation. You may also need to navigate child support, which involves determining a fair and equitable amount of support based on the child’s needs and the parents’ financial resources.

Division of Assets and Debts

One of the key issues in many divorces is the division of marital assets and debts. This process can be challenging, particularly in cases where the couple has significant assets or debts, or where there is a dispute about what constitutes marital property. As the plaintiff, you will need to provide a complete and accurate accounting of your assets and debts, and be prepared for negotiation or potentially litigation over these matters.

Spousal Support (Alimony)

Depending on the circumstances of your divorce, you may need to consider the issue of spousal support, also known as alimony. If you are seeking support, you will need to provide evidence of your financial needs and your spouse’s ability to pay. If your spouse is seeking support, you may need to provide information about your income and assets, and potentially challenge the amount of support requested.

Advantages and Disadvantages of Being the Plaintiff

When initiating a divorce, one must carefully consider the potential advantages and disadvantages. As the plaintiff, you set the course of the divorce but also shoulder certain responsibilities and challenges. Understanding these pros and cons can help you make informed decisions about your divorce proceedings.

Advantages of Initiating the Divorce

• Control Over Timing: As the plaintiff, you control the timing of the divorce filing. This allows you to prepare both emotionally and financially before the proceedings begin.
• Choice of Jurisdiction: If you and your spouse live in different jurisdictions, filing first may allow you to choose the jurisdiction, which can impact various aspects of the divorce, such as property division and child custody.
• Preparation Advantage: Filing first gives you the opportunity to gather all necessary financial documents, secure legal representation, and prepare your case thoroughly before your spouse has a chance to respond.
• Emotional Readiness: Initiating the divorce can provide a sense of control and readiness, which can be beneficial from an emotional standpoint.

Drawbacks to Being the Plaintiff

• Filing Costs: As the plaintiff, you’re responsible for the filing fees associated with initiating the divorce proceedings.
• Potential for Increased Conflict: If your spouse is unaware or not ready for the divorce, your filing could increase tension and conflict, which may make the proceedings more challenging.
• Disclosure of Financial Information: You’ll be required to disclose all your financial information when you file, which might give your spouse a chance to hide assets if they are so inclined.
• Emotional Consequences: Initiating the divorce can sometimes lead to feelings of guilt or increased emotional distress.

While being the plaintiff in a divorce case comes with certain advantages, it also has potential drawbacks. The decision to become the plaintiff should be based on your specific circumstances, and it’s advisable to consult with a legal professional before proceeding. Understanding the advantages and disadvantages can help you navigate the divorce proceedings more effectively and make choices that are in your best interest.

Getting the Legal Help of an Experienced New York Divorce Lawyer

Whether you are the plaintiff or the defendant, understanding the specifics of your case, the legal jargon, and the demands of the court can be a complicated task. A competent divorce lawyer can break down these aspects, aiding you in making informed decisions that safeguard your interests.

Going through a divorce necessitates support that goes beyond legal counsel. At Law Office of Richard Roman Shum, Esq, our team of experienced Manhattan divorce lawyers may be able to provide this support, working towards the most advantageous outcome for you. There is no requirement to tackle this situation alone. Our team can help you traverse this challenging path with assurance and tranquility. Contact us today at (646) 259-3416 to schedule a consultation.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/who-is-the-plaintiff-in-a-divorce-in-new-york/

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/