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Child Custody Proceedings in Brooklyn Family Court

FLU Fact Sheet #13

What is Custody?

Legal custody and physical custody are different. The person who the child lives with is the physical custodian. The legal custodian of a child has the right to make important decisions for the child, including medical, educational, and religious. The physical custodian also has the responsibility for making sure that the child’s day-to-day needs are met. That means assuring that the child is safe, well-fed, has clothing, shelter, health care, and attends school on a regular basis.

The legal custodian usually also has physical custody.

The child’s parents both have the right to custody of their children. If the parents are married, the father has the right to seek custody. If the parents are not married, the father must first prove that he is the father before he has the right to seek custody. If he has not signed a paternity affidavit or if there is no order of filiation, he will have to file a paternity petition first.

What happens when there is a dispute about custody between parents?

The parties can go to court and let a judge decide who should have custody. Parents have equal rights to custody of their children. When deciding custody between two parents, judges must decide which custody arrangement will be in the “best interests” of the child. To decide this, the judge is supposed to consider:

  • History of domestic violence
  • Who has been the primary caretaker of the child
  • The wishes of the child (depends on age and maturity of child)
  • The stability of the child
  • Keeping siblings together
  • The relative fitness of the parents (includes substance abuse, mental health issues)
  • The ability of one parent to facilitate a relationship with the other parent.

What is Joint Custody?

When parents have joint legal custody, they make all of the important legal decisions for the child together, including medical, educational and religious. Usually, one parent has physical custody and the other has visitation. The parents can also have shared physical custody. Before parents agree to joint custody, they must be sure that they can resolve problems together and put the child’s best interest first. A court will not order joint custody after a trial. The parents must agree to it.

Disputes between a parent and non-parent

The law says that a parent has a greater right to custody of a child against a non-parent unless there are “extraordinary circumstances.” Extraordinary circumstances exist if the parent has abandoned a child or is currently unfit to care for a child. The judge will look at:

  • How long the parent and child have lived separately
  • The current relationship between the parent and child
  • The reasons why the parent gave up custody of her child and whether or not she has addressed those problems

Can you change a custody order?

Courts will not change a custody order unless there is a good reason. The party seeking the change has the burden of proving this. In determining whether to change custody, a judge will look at whether the custodial parent has denied the non-custodial parent regular contact and visitation with the child and whether the totality of the circumstances suggests that a change would be best for the child. The court may also look at whether there has been a change in circumstances. The court will also consider whether the custody order was based on an agreement or decided after a trial. The court is more likely to change custody agreements between parties than it is to change a decision made by a judge after a trial.

How do you file for custody or a change of custody in Family Court?

In Brooklyn, the Family Court is located downtown at 330 Jay Street. Custody proceedings in Family Court are started by going to the Petition Room on the sixth floor and filing a petition for custody . If you are trying to change a previous custody order, you should file a petition to modify custody. You do not need a lawyer to start a case in Family Court. The petition will state the reasons why you think you should have custody. You should think carefully about what you will say in the petition beforehand.

On the day that the petition is filed in Family Court, the person filing it (“petitioner”) will see a judge who will give a date for the parties to return to court. A different judge may be assigned to the case. If there is no order of protection case, the custody case may be assigned to a “referee” instead of a judge. The court will give the petitioner copies of the petition to serve on the person he/she is filing against (“respondent”) before the next court date.

How will the respondent know to come to court?

The petitioner must make sure that the papers are “served” or handed to the other side. The petitioner cannot serve the papers him or herself, but must have a friend or family member or process server file the papers. You must have an affidavit of service to bring to the next court date.

What if the parents are married?

Married partners can also go to Family Court to resolve custody disputes or they can resolve custody as part of a divorce case. Divorce cases are filed in Matrimonial Court. It is much harder to go to Matrimonial Court without an attorney.

What happens after the custody petition is filed?

The court sees if the respondent was properly served and whether the case will be settled or go to trial. Usually, the judge’s court attorney will speak to both sides to see what their positions are. The case can only be settled if both parties agree to resolve the matter. If the parties can not reach an agreement, the judge will probably:

  • Order the Administration for Children’s Services (ACS) to perform a Court-Ordered Investigation (COI)
  • Appoint an attorney to represent the child (law guardian)
  • Adjourn the case to another day

Will the Court appoint an attorney to represent parents in custody cases?

In Family Court, parents have a right to be represented by an attorney in custody cases if the court finds they are indigent (poor). If a custody petition is filed against a non-parent who has physical custody, he/she also has the right to an attorney. You can ask that an attorney be appointed to you or you can bring an attorney to court.

What is a COI?

ACS will send a caseworker to the homes of both parties. The caseworker will interview the parties and the children and investigate the homes to see if they are appropriate for children. The caseworker will then write a report for the judge. ACS usually does not take a position about who should have custody.

Who represents the children?

Law guardians are attorneys who represent children. The law guardian investigates the case and may try to help the parties reach a settlement. The law guardian usually interviews each party separately and interviews the children if they are old enough. The law guardian’s position carries a lot of weight with the judge and it is important to fully cooperate with the law guardian. In Brooklyn, most children are appointed a law guardian from the Children’s Law Center, located at 44 Court Street (718) 522-3333.

What will happen after ACS and the law guardian perform their investigations?

Based on the results of these two investigations, the court attorney will see if the case can be settled on the next court date. If the parties cannot agree, the judge will schedule the case to go to trial. In some cases, before scheduling a trial, the court will order a psychologist or social worker to investigate the family and write a report (this investigation is called a forensic evaluation).

What will happen at a custody trial?

If you don’t settle your case, the case will go to trial. The petitioner goes first. Both parties can testify and call witnesses to testify on their behalf about why they are the better custodian. Children generally do not testify although sometimes the judge will speak to the children without the child’s parents.

Custody trials in Family Court can require several adjournments, can take a very long time, and can be very difficult on the children who are involved.

This fact sheet was prepared by the Family/Domestic Violence Unit of South Brooklyn Legal Services.

If you need more information, you can call the Family/Domestic Violence Unit hotline at South Brooklyn Legal Services on Tuesdays between 12:00 – 1:00, (718) 237-5563 or go to the Family Justice Center at 350 Jay Street, 15th Floor, Monday through Friday from 9 a.m. to 5 p.m.

This article was posted January 11, 2008