RAQ's and FAQ's on New York Child Custody and Visitation Cases in New York Family Courts and Supreme Courts
We have all seen the rise in popularity of "FAQ's" (Frequently Asked Questions). But we have yet to see a single website with "RAQ's" --Rarely Asked Questions-- on, say, child custody, dispute of which lies at the heart of our firm's most challenging cases.
1. Why do New York family court and divorce court judges still use the word "visitation" when they discuss the time a parent spends with his or her child?
All too often, we see the following interaction between a NY Family Court judge or a NY Supreme Court judge and a parent, when dealing with custody and non-custody:
These are fictionalized minutes of a proceeding:
THE COURT: Mr. ..do you want visitation with your child this weekend? Say, 3 hours on Saturday.
THE NON-CUSTODIAL PARENT: Judge, I don't want to visit with my child, I want to be a parent to my child. Visit implies, like, I'm going to jail or something, and the child has to "visit" me.
THE COURT: You're not going to jail, at least not yet. Do you want to visit with the child? Yes or no.
THE NON-CUSTODIAL PARENT: No, I don't want my child 'visiting' me. I demand to continue being a parent to this child, in spite of the fact that the child will have 2 homes.
The lesson here is that for some New Yorkers going through a divorce, the word visitation does not sit well with them. We still haven't figured out why NY judges continue to use it, especially in the NY Family Courts, where you would imagine the NY Family Court judges should be more inclined to sustain the child's relationship with both parents. Some judges in New York State --for example, the Honorable Sidney F. Strauss in Queens County Supreme Court, has replaced the word "visitation" with "co-parenting time" or "time sharing." Both are parent-neutral terms, which are much less likely to antagonize the non-custodial parent. By drafting a Stipulation of Settlement which uses the word "visitation," the family law attorney may run into some members of the species, who, much like the male penguin in Alaska, does much of the stay-at-home care for the young, while the female is out hunting.
On the other hand, we have also encountered many parents who do not mind the word "visitation" in describing the time they intend to have with their children after a divorce. The point is that it's your future with your children, and you ought be vocal NOW and negotiate what kind of future you envision with your children after a divorce. It is much more difficult to change custody or time with the children once the ink is dry on the divorce decree.
2. Do I have to cave-in to "every other weekend" scenarios with my children after the divorce?
No. A judge once stated to a divorcing couple "Never let a third party tell you how your parenting time with your child should be after a divorce." That third party is the judge. The judge will only order a parenting schedule/custody order only if your lawyer and the other lawyer cannot come to an agreement. Sometimes the other lawyer's client is unreasonable when it comes to how much time you should or should not have with your children after divorce. So if deep down your gut tells you that what's best for your child is to, for example, relocate to another state, fight for it; if deep down your gut tells you that you would make a better custodial parent and the child should spend most of the time living with you, fight for it. Don't listen to others saying "Stop being adversarial." Only you truly know the personality of the other party, and only you know what's best for your child. Don't let a third party decide the fate of your child's future with you. Negotiate, negotiate and negotiate with the other side, and if all else fails, go to trial on custody if you truly believe that the parenting time they are offering you is not in the best interests of your child.