Spouse Awarded Full Custody? Know Your Rights
In a divorce case where children under the age of 17 are involved, the issue of child custody must either be agreed upon by the parties, or decided upon by the court. There are two components of child custody, i.e., legal custody and physical custody. Legal custody gives a parent the right to make major decisions regarding the child’s upbringing. Custody can be shared by both parents, as with a joint custody award, or given to one party, as with a sole custody award. In New York the general trend is for both parents to share decision making, which results in joint custody. However, in certain cases, where a parent has a substance abuse problem, suffers mental illness, or where the parties are too acrimonious to share in decision making, sole custody will be awarded to one spouse. What happens when your spouse is awarded full/sole custody? If you find yourself in this situation, be sure to contact the Garden City divorce attorneys at Fass & Greenberg to understand your rights.
A legal custodial parent has the right to determine a child’s upbringing, such as in matters related to education, medical issues, and religion. In joint legal custody arrangements, the parties must both agree on major decisions. In the event that the parties cannot reach an agreement, they can go to court or defer to a professional in the field for guidance in reaching a decision. Often, parties will be required to go to a mediation before going to court. But when your spouse will not agree to joint custody, you may be wondering how the decision-making plays out. When your spouse is awarded sole legal custody, you, as the noncustodial parent, will not have equal decision-making authority. However, a noncustodial parent does have a right to be consulted on all major decisions and, in almost every case, would be granted access to information regarding the child’s education, medical history, and activities. This allows you to remain actively involved in what is going on in your child’s life. A noncustodial parent also has the right to challenge decisions made by the custodial parent, should you believe the decision goes against the best interests of the child. Understanding these rights owed to you as a parent is crucial to be able to properly advocate for yourself in custody disputes.
In 2009, in the case of Fuentes v. Board of Education of the City of New York, the New York Court of Appeals answered a question regarding the status of a noncustodial parent’s decision-making authority. The Court responded that the noncustodial parent does not automatically retain decision-making authority, for education in that case, but acknowledged that a noncustodial parent can retain decision-making authority if the custody order or divorce decree expressly permits joint decision-making authority for certain decisions. If you are a noncustodial parent who feels strongly about being involved in certain decisions pertaining to your child’s upbringing, an attorney can help you advocate to have that decision-making authority written into the divorce decree or custody order.
A lack of legal custody does not mean that you will not be able to spend time with your children. Both parties must also come to a decision regarding physical custody of any children involved. The non-residential parent is often awarded visitation rights, typically consisting of alternate weekends and one midweek dinner visit, since courts generally support a child having a relationship with both parents. The court can award visitation on a supervised or unsupervised basis. Should a custodial parent attempt to interfere with the noncustodial parent’s visitation rights, visitation can be enforced through a petition to the court. In the event that you, as the noncustodial parent, believe a custody or visitation award is unjust, you have a right to challenge the determination. An attorney can help you file a petition to alter the custody or visitation arrangement.
Understanding your rights and responsibilities as a parent is important when going into any divorce or custody dispute. The attorneys at Fass & Greenberg are experienced, compassionate, and competent when it comes to handling family law matters. If you have concerns regarding custody or visitation, reach out to the Garden City divorce attorneys at Fass & Greenberg to ensure that your parental rights are protected.