Types of Custody in New York

When a couple with children separate, several decisions must be made regarding the welfare of the children. One of the issues parents face is determining the custody of the children. In Albany, there are several forms of child custody, and parents should try to work out an agreement that works for everyone involved.

Legal Custody

Legal custody is granted to one or both parents. Whoever is granted legal custody has the responsibility of making legal decisions for the child. For example, where the child goes to school, what religion the child practices and medical decisions are all made by the parents with legal custody. If only one parent has the right to make those decisions, that parent is said to have sole legal custody. If the court determines that both parents should make these decisions, then they were both granted joint legal custody.

Physical Custody

Physical custody can also be granted to just one or both parents. This type of custody determines where the child lives. In the case of joint physical custody, the child lives with both parents and they share in the upbringing of the child. If one parent has sole physical custody, the child lives with the custodial parent and the other parent has visitation rights.

If one parent feels he or she is being left out of important decisions about the child’s upbringing, that parent can petition the court to revisit the legal or physical custody decision. But before doing so, a person may want to speak with a legal professional so his or her rights are protected and the child gets valuable input from both of his parents.

You can contact us for more information on our New York child custody attorney services.

Source: New York State Unified Court System, “Custody,”.

Physical and Legal Child Custody in New York

Divorce in New York How to Cope With Divorce Albany NY Lawyer
Parents who are responsible for caring for the needs of a child will hold some kind of custody rights with regard to the child. In New York, those custody rights are made up of two primary parts, physical custody and legal custody. In some situations, a parent will hold both physical and legal custody, but in other cases the parent will hold only one type of custody or none at all.

What is Legal Custody?

Legal custody refers to a parent’s ability to make decisions about a child’s religious upbringing, medical care and other important matters. If joint legal custody is awarded to both parents, then they will need to make these kinds of decisions together, and each time a decision like this is made, parents will have to discuss the issue and come to mutual agreement. Meanwhile, if just one parent holds sole legal custody, then that parent will have ultimate authority in making all decisions about the child in this regard.

Physical custody refers to which parent the child lives with, and which parent cares for the physical needs of a child and supervises the child. In cases of joint physical custody, the child or children will split their time 50-50 with both parents.

Get in Touch with a New York Family Attorney

New York courts will have jurisdiction over determining the custody situation for a child until that child reaches the age of 18. Until that time, courts have the authority to award custody to one parent or both parents based on the determination of what serves the child’s best interests. Barring a court order or settlement agreement by the parents, however, both parents will automatically hold equal legal and physical custody of the child. New York residents in the midst of a child custody can contract the assistance of a family law attorney to help them navigate the complexities of their unique child custody cases.

Source: New York Courts, “Custody,”

The Benefits of Joint Custody

Many couples going through divorce in New York must tackle such issues as divvying up assets and determining alimony. However, parents who are divorcing must also address the needs of minor children. Among the top concerns will be custody and state law requires consideration of the child’s best interests. Still, the preferred arrangement is allowing both parents to be involved with decision-making under the concept of joint custody. While you should discuss whether joint custody is appropriate with a Greene County child custody lawyer, it is worthwhile to review some of the benefits.

Relationship Benefits

When children are able to maintain a close bond with both parents, the can benefit from having a relationship with each. Parents with joint custody share in making decisions, so the child is more likely to see each as a strong role model. Studies show that children who spend 35 percent or more of their time with each parent have better relationships with their mothers and fathers, and are more likely to succeed academically, socially, and psychologically.

Routine Means Structure

Joint custody requires you and your child’s other parent to work out a parenting schedule to spend time with him or her. The specifics will depend upon your specific circumstances and lifestyles, but a schedule will be necessary. Children thrive on habit and routine, so joint or shared custody streamlines the transition between two households. Without the structure offered by joint custody, they may be confused about what to expect.

Sharing Discipline

While you thrive on the enjoyable moments with your child, there will be occasions where young ones require discipline. Joint custody ensures you are not the only one acting as the “bad” guy, since you and the other parent will both the in the position to enforce rules. A team approach to discipline is especially useful as children get older and start to test new boundaries.

Increased Cost-Sharing

A New York court will enter an award on child support, usually to the parent who will have residential custody of children. Still, unexpected expenses creep up on a regular basis. With joint custody, splitting everyday costs comes more naturally as each parent absorbs the few dollars here and there.

Alone Time

There is no doubt you love your child but, when you were married, you probably enjoyed some free time while your spouse handled child care duties. Joint custody allows you to continue your “me time,” no matter how you choose to spend it. Time alone also makes you appreciate having your child around, giving you a glimpse at the bigger picture of the benefits of joint custody.

Talk to a New York Joint Custody Lawyer Today

There are many more advantages to having joint custody of children, but the arrangement is not suitable for every situation. If you would like more information on how custody works, please call The Colwell Law Group at 518.864.0564 to schedule a consultation with one of our experienced attorneys. You can also visit our website for more information on our New York divorce legal services.

What Is Bird’s Nest Custody?

Child Custody Attorney
Bird’s nest custody refers to a shared custody arrangement for separated or divorced parents. It entails the children living in only one house, with the parents taking turns living with the kids in that house. So when it’s time for Dad to come home, Mom will leave, and when it’s time for Mom to come home, Dad will leave. The children will remain in the house at all times, instead of being the ones shuffled between homes.

Bird’s nest custody is an uncommon child custody arrangement and it’s rare to be mandated by a family court. Usually, the separated couple will have to ask for it. Therefore, bird’s nest custody is only possible when both parents are on board with the arrangement.

The Pros of Bird’s Nest Custody

The most obvious advantage of bird’s nest custody is that the children do not have to move from one place to another during the course of custody arrangements. Instead, it’s the parents who have to take turns living in the home with the kids. This provides the children with a degree of stability that’s comparatively higher than other forms of arrangements, even after the divorce.  This stability can have great benefits for the children. Children living in a more stable environment can enjoy extracurricular activities without having to worry about which home they’ll go to at the end of the night.

Additionally, it can also be easier for the parent to communicate within a nesting custody arrangement. After all, since they still share a home, they can simply leave notes on the refrigerator. Or, if they’re on good terms, they can just talk to each other about issues when one is leaving and the other comes by.

The Cons of Bird’s Nest Custody

Again, the biggest con is self-explanatory. The parents will need to relocate their own lives, which could put a strain on them financially. After all, a bird’s nest custodial arrangement necessitates three places for the entire family to live in – one for each parent, and one for the children.  This will be much more expensive than more traditional arrangements, which only require two houses.

Plus, bird’s nest custody could cause the parents to find moving on to other relationships a significantly more challenging endeavor, since the nesting custodial arrangement won’t just affect how the parents and their children live, but also how any future partners would have to live as well. And of course, if the parents don’t get along, the arrangement could get frequently awkward.

Consult an Experienced Albany Child Custody Lawyer

For bird’s nest custody to work, it is important to consider all these factors and more before making the decision. Talk to your Albany Child Custody Lawyer to determine if the arrangement works for you, your ex and the children.

Mistakes Made During Child Custody Battles

Most parents want what’s best for their children. This can cause parents to make mistakes in the divorce process. In a bid to get full child custody, a parent may say or do things that can make the situation even more difficult. They may have been wronged by their ex-spouse and now they’re looking to seek revenge—even though this tactic often backfires.

The courts are looking out for the best interests of the children, so if you’re acting in a way that causes the judge to question your motives, custody will likely go to the other parents. Many parents make mistakes during New York child custody battles, but you don’t have to let this happen to you. Here’s how to avoid common child custody mistakes.

Getting Too Emotional

A divorce is an emotional event, so you’re no doubt feeling angry and hurt. Don’t let this dictate your child custody battle. Even though you are likely facing pressure from friends and family, show restraint. Focus on making the process amicable instead of contentious.

Using Child Custody as a Form of Revenge

If you’re seeking sole custody of the kids, it should be because you truly want to provide your children with the best upbringing possible—not because you know the other parent also wants custody and you just want revenge. Even if you’re angry about the situation, don’t let the court see how bitter you are. The court wants to see collaboration, so if you’re always angry and bitter, you’re going to lose out on your end of the deal.

Failing to Communicate With the Other Parent

Parenting after divorce takes a lot of maturity and grace. Yes, it will be awkward, but if you’re always defensive around the other parent or refuse to communicate with him or her at all, the judge is going to take note. If you cannot agree with the other parent on anything, the judge may deem you as the “problem parent” and make the decision to award sole legal custody to the other parent. Therefore, cooperation goes a long way in showing the court that you are mature and fit to parent.

Using Social Media

It seems like everyone is on Facebook nowadays, but if you’re in the middle of a divorce, either stay off of it or use it with caution. Anything you post on there can be used against you, so if you post photos of you drinking at a party or writing vile posts about your ex-spouse, it’s not going to look good in court. The judge can use this evidence against you, so don’t overshare.

Let Our Albany Child Custody Lawyers Help You Today

When it comes to child custody, many mistakes can be avoided. By working with a lawyer, you can come up with a viable strategy.

The experienced family law attorneys from The Colwell Law Group can help you with the challenges you will face. We will work tirelessly to help you achieve a favorable outcome in your child custody battle. Contact us today by calling (518) 512-0257 or texting us at (518) 730-7028.

Help for New York Parents Fighting for Child Custody

At the Colwell Law Group, LLC, we know that New York parents consider their children to be the most precious possessions they own. As such, we are highly sensitive to the fact that most parents will do anything and everything in their power to keep their children in their lives and to spend time with their children as much as possible.

How We Can Help With Your New York Child Custody Case

In supporting parents and their child custody goals, the lawyers at the Colwell Law Group are committed to protecting the parental rights of our clients and to safeguarding the best interests of their children. In order to achieve this in child custody disagreements, our firm employs the following four-stage strategy in the child custody matters we take on:

  • First, we assist parents in pinpointing their own needs and also their goals for their cases. This involves a detailed discussion about the parent’s current economic, employment, health and life situation and also a conversation about what child custody result the parent wants to achieve.
  • Second, we device a suitable legal strategy that we will employ on behalf of the parent in order to achieve his or her child custody goals in a way that honors the parent’s current life situation and needs.
  • Third, we keep an open line of communication with our clients during every part of their child custody case. We know that clients who have easy access to their attorney in order to ask important questions as they arise tend to have an easier and less stressful experience in the litigation of their cases. Therefore, we maintain close ties of communication with our clients through every step of their child custody legal matter.
  • Fourth, we work as a team that includes our office and the parent in order to seek the most successful outcome possible in their legal matter.

New York parents engaged in a child custody lawsuit may want to have an experienced child custody lawyer on their side. At the Colwell Law Group, we have child custody lawyers on staff who are ready to speak with parents about their child custody dilemmas and provide them with suitable legal strategies and solutions to meet their needs.

Strategies for achieving a workable joint custody arrangement

Although a parent may intuitively understand the benefit to a child of joint parenting, any further interactions with a former spouse might be burdensome after a divorce. Fortunately, a detailed parenting plan and approach to joint custody can help establish a structure where communications between former spouses are minimized and kept professional.

The approach, called parallel parenting, requires parents who share legal custody to allow the day-to-day decisions to be made by whichever parent has the child on a given day. For more important decisions, however, a joint decision may be required.

A detailed parenting plan can address a surprising number of issues: holidays, weekends, alternating months, how decisions on important issues will be made, how parents will share information between them, and even how conflicts and/or last-minute modifications will be handled. In fact, a plan may even designate a third party for any disagreements that might arise, such as a counselor or lawyer. There are legal strategies for achieving a favorable child custody outcome, but open communication between parents can save a lot of time, not to mention that minimizing parental conflicts is often in a child’s best interest as he or she deals with the transition of a divorce.

Our divorce and family law firm has helped many parents come up with realistic parenting solutions during their divorce. Finding the perfect balance between detail and flexibility in a parenting plan can seem more like art than science. Nevertheless, our attorneys have the experience to help parents communicate their intentions and to be a calm sounding board when disputes arise. Chances are that a plan may need to be modified as children get older and their schedules, interests and lifestyles change. The law can help parents in this situation, too.

Source: Huffington Post, “What’s The Best Alternative To Co-Parenting When Ex’s Don’t Get Along?” Terry Gaspard, April 1, 2016

Can the law help with an uncooperative parent after the divorce?

Arriving at a child custody and visitation agreement is not always an easy process, as we discussed in a recent post. If an arrangement was hard fought, there may be a chance that disputes will arise after the divorce.

Fortunately, the New York State Unified Court System’s website offers guidance in this scenario. Although the site does not offer legal advice, it does describe several resources that are available. In terms of child support enforcement, a federal law, Title IV-D of the Social Security Act, requires every state to have enforcement laws. In New York state, there are Child Support Enforcement Units that can help a custodial parent obtain the compensation he or she needs from the non-custodial parent. Application for that relief is to the specific state agency, rather than the family law court that presided over the divorce.

However, the courts are available if modifications need to be made to the terms of a custody or visitation arrangement. This change may be necessitated by various factors. The reason for the modification might not always be bad faith, as in the case of one parent who may have gotten a new work schedule.

However, a parent might also be failing to comply with the court-ordered schedule of parenting time. In a joint legal custody arrangement, perhaps one parent is failing to include the other in significant decisions involving the child. Fortunately, our family law firm has helped many parents who have needed assistance holding the other parent accountable after a divorce. Whether the matter involves a dispute over parenting time, child custody or child support, we have the experience to protect your rights and/or enforce compliance with a family court order.

Source: “Child Support Resources,” copyright 2016, New York State Unified Court System

Sharing Custody with a Hostile Ex-Spouse

Child Custody Lawyer
New York allows parents to have
joint custody of their children. Many people envision this arrangement as ideal, since each parent will be equally involved in their children’s lives. However, in practice, joint custody arrangements are often fraught with conflict—especially if you have a high-maintenance or hostile ex. To survive this arrangement, follow the tips below.

Come Up with a Detailed Schedule

Ideally, the judge approved a parenting plan that lays out in detail who will have the children when. Unless you have a “birds nest” custody arrangement where each parent lives in the home, chances are the children will need to be transported back and forth to each parent.

The key is to come up with a schedule and stick to it. Write the schedule down so that both parents know where the children are supposed to be at any given time. Also provide as much detail as possible. For example, state the specific time of day when you are supposed to drop off or pick up your child—“Sunday at 4:00” is better than “Sunday afternoon.”

Clarify How Decisions will be Made

As parents, you make countless decisions for your child. For example, will Megan try out for field hockey? Can Tyler spend the night at a friend’s house on Friday night? However, other decisions are more serious: Will your child get braces? Should she go on a prescription drug to treat acne?

As co-parents, you get to make decisions for your child. But it is simply unrealistic for a parent to have a say in every little decision. Instead, you and your ex need to sit down and identify which decisions one parent can make alone versus which decision require both parents’ involvement.

Work through Conflict in a Productive Manner

The simple fact is that you cannot get away from your ex—you share kids, after all. So you need to make the joint custody arrangement work. One key will be handling disagreements in a professional and amicable manner. This can be difficult, especially in the immediate aftermath of the divorce. However, remind yourself of the following:

  • Disagreements negatively affect your children, and children pick up on more than you imagine.
  • Your ex might be hostile for a variety of reasons, some of which might not even relate to you.
  • Avoid amplifying the hostility by being hostile yourself. Instead, think of your ex as a coworker and maintain a level of professionalism.
  • Work with a mediator or counselor if you find that the relationship is seriously breaking down. A third-party neutral could offer a fresh perspective and help you get back on track.

Change the Custody Arrangement for Everyone’s Sanity

Sometimes, despite our best efforts, joint custody arrangements simply do not work. Rather than hang your head in shame, you need to step up to the plate and acknowledge the problem. Also acknowledge that you have done everything possible to make the arrangement work. Now is the time to contact a lawyer and discuss modifying the joint custody arrangement to something more manageable.

Speak with a Saratoga County Child Custody Lawyer Today

Many of our clients express relief after the divorce is finalized—only to realize that the hard part of co-parenting has only just begun. If you need help dealing with a hostile spouse, feel free to call the Colwell Law Group today. You can reach us at 518-631-3954.

Non-Biological Parents and Child Custody

child custody attorney
Child custody
issues often involve the child’s parents. The parents may be going through a divorce or maybe they never married and are now splitting up. Perhaps there is some doubt that a man is your child’s father.

Some child custody issues, however, involve non-biological parents. Perhaps the stepparents, grandparents, aunts or other relatives feel that the children are being neglected or abused. Maybe they are in an unsafe environment and would benefit from a change in custody arrangements.

Child custody laws vary from state to state, but almost all favor the child’s biological parents. There are some situations, though, in which a non-biological parent can be awarded child custody by the court.

New York Laws

In the past, the state did not allow non-adoptive, non-biological parents to be awarded child custody and visitation rights. That changed in 2016 when the Court of Appeals awarded visitation and child custody in two cases involving unmarried couples who conceived children together and then split up.

Both couples were same-sex couples who used artificial insemination to conceive the children. Since both parties in each couple raised the children after conception, they were considered legal parents.

State laws are now keeping up with changes in medicine, with reproductive rights and advanced technology allowing couples to conceive children through unnatural means. However, when there is a dispute between the biological parent and a non-parent, the law tends to favor the biological parent.

When May a Non-Biological Parent Obtain Child Custody?

Even if the biological mother and father object, there are some situations in which a non-biological parent may be awarded child custody. Some examples include the following:

  • The biological parent is unfit. The parent abuses drugs or alcohol and/or neglects or abuses the child.
  • The biological parent is unavailable. The parent is in jail, has deserted the child or has died.
  • The custody arrangement is not in the best interests of the child. The child does not want to be with the parent, would benefit from living with another family member or feels unsafe in the environment.

A non-biological parent will be considered if he or she is a family member or has been a large part of the child’s life. A person whom the child does not know would not be in his or her best interests.

Contact an Albany Child Custody Lawyer Today

Child custody laws tend to favor the biological parent. There are situations, though, when a biological parent is unavailable or when another adult would make a more suitable parent. New York laws are changing the way the state defines parenthood, so if you’re looking to gain custody of a child, the law may be on your side. To learn more about your legal rights, get in touch with a family law attorney from The Colwell Law Group. Contact us today at (518) 512-0544.

Are You Concerned About Interstate Child Custody?

A lot of New York parents handle minor decisions regarding the care of their children informally — especially when both parents have friendly relations and they are working closely together to raise their children. However, some matters need to involve judicial oversight, no matter what. One of those relates to interstate child custody.

What is Interstate Custody?

If you want to remove your child from New York to another state, or if the other parent of your child wants to move to another state, it is important to involve the courts. This will ensure that no issues will arise relating to the Parental Kidnapping Prevention Act or the Uniform Child Custody Jurisdiction and Enforcement Act. These laws govern how courts need to treat interstate child custody matters, and they have several very important factors that the court needs to review before deciding on these cases.

Under the PKPA or the UCCJEA laws, one or the other parent might request that the child or children remain in the current state of residence. Alternatively, a parent might use the laws to request that a child is returned to the original state of residence. These laws can also be used by a parent hoping to gain permission to move to another state with his or her children.

In all matters of interstate child custody, parents must keep in mind the threat of being accused of parental kidnapping. For example, if one parent removes a child to another state (even takes the child across state lines temporarily) without receiving the express permission of the other parent, that parent might be seen as kidnapping the child.

Call a New York Child Custody Lawyer

At the Colwell Law Group, we handle all legal matters relating to interstate child custody. We have assisted parents in defending their right to travel with their children over state boundaries, helped parents defend their right not to have their children taken out of state without permission, and represented parents in many other kinds of child custody disputes.

What Constitutes Parental Kidnapping?

There are numerous ways in which a custody negotiation can go from a frustrating procedure to an interpersonal battle with serious legal consequences. For any parent in the middle of a custody battle, it is vitally important to know when you or your partner may be crossing the line between frustrating or offensive behavior and actual violations of the law through parental kidnapping. The laws governing what constitutes parental kidnapping do vary from state to state, but most states recognize the same broad categories of violation.

Parental Kidnapping

Parental kidnapping can be as simple as one parent refusing to let the other parent interact with a child. This can occur before there is any legal separation or divorce, or before any custody battle has begun. Enforcing the right to interact with one’s children is possible in this scenario, but will be difficult to achieve without an official court order.

Some states may also consider one parent withholding visitation privileges from another parent to be parental kidnapping. In this case, the withholding parent will be in violation of an existing court order. It is important to note that the violations of one parent, such as failure to pay to pay child support, do not make withholding visitation privileges any more legal. While withholding visitation may not necessarily be deemed parental kidnapping, depending on the state and the circumstance, it is certainly a violation of a court order, which can entail serious consequences.

The classic example of parental kidnapping involves a parent taking a child without the permission or against the will of the other parent. If this occurs while parents are still married, this is not considered kidnapping (for instance, one parent taking a child on a trip to a theme park against the wishes of the other parent). If, however, there is an existing court order which grants custody rights to one or both parents, and a parent takes a child to a place or at a time that is in violation of his or her visitation, this constitutes parental kidnapping.

Contact an Albany Child Custody Attorney

It can be difficult to know when exactly one may be guilty of parental kidnapping. Those who are concerned about the legality of a certain activity may find the guidance of an experienced attorney will keep them legally in the clear.

Source: FindLaw, “What is Considered Parental Kidnapping?,” Le Trinh, Esq., accessed Aug. 19, 2016.

What Is the Role of a Guardian ad Litem?

Role of Guardian
In most contested divorce cases, each spouse is separately represented by an experienced attorney. But if there are young children involved–and the parents are fighting over custody and visitation–who represents their interests? In Albany and Schenectady County, the answer is a Law Guardian, who is sometimes known by the more formal term of “guardian ad litem.”

Under New York law, any minor who is the “subject of family court proceedings” has the right to be “represented by counsel of their own choosing or by assigned counsel.” Typically, the Family Court judge presiding over the parents’ divorce trial will appoint a qualified attorney to act as the child’s Law Guardian. If the child is old enough, he or she may also hire their own Law Guardian, which is usually paid for by one of the parents.

What a Law Guardian Can (and Cannot) Do For Your Children

Although the term “guardian” is used, it is important to understand this attorney only plays a limited role. The Law Guardian does not assume any custodial responsibility for the child. Rather, the Law Guardian is there to help the child “express their wishes to the court” with respect to custody and visitation matters. If the child is very young and unable to express any wishes–or what the child wants may cause him or her imminent, serious harm–the Law Guardian may substitute their own views of what would be in the child’s best interests.

But the Law Guardian is not there to act as a social worker or an independent investigator. The Law Guardian cannot disregard the child’s wishes just because he or she disagrees with them. And any confidences or secrets that the child shares with the Law Guardian is privileged, just as any attorney-client communications between the parents and their divorce attorneys would be.

In recent years, New York judges have made a point of restricting the scope of the Law Guardian’s responsibilities. As one New York appeals court explained in a 2005 case, many Family Court judges in the past have asked Law Guardians to file “reports” or “recommendations” with the Court regarding custody. This “improperly elevates the Law Guardian’s position to something more important to the court than the positions of the attorneys for each of the parents,” the Appellate Division, Third Department said. The Law Guardian should only “take a position on behalf of the child at the completion of a proceeding — whether orally, on the record, or in writing–and that position must be supported by evidence in the record.”

Do You Need Help With an Albany Divorce?

If you are in the midst of a divorce, it is important to understand how the proceedings will affect your children and their legal rights. An experienced Saratoga County lawyer can help guide you through this difficult process. Call The Colwell Group, LLC, today at 518-462-4242, to speak with one of our qualified Schenectady County family law attorneys.

Crime Conviction and Child Custody

Being convicted of a crime — especially a violent crime — can be sufficient reasoning for a court to choose to award sole custody to the parent that did not commit the crime. New York mothers and fathers who have children, may, therefore, want to pay close attention to the criminal records of the individuals they share children with. If the other parent has a violent crime conviction on file, it might be an important piece of evidence to use during child custody proceedings.

In a recent high-profile case, a mother is trying to do just that. The ex-partner of a man who was arrested on allegations that he set off bombs in New Jersey and New York has filed court documents requesting full custody of the child they share together. According to court filings, the Afghan-born man could lose custody of his child.

The woman cited legal arguments saying that she should receive full custody because her ex-partner was charged by police with allegations of attempted murder and that he is currently under the protection of the police due to his alleged terrorist activities. When reporters tried to reach the woman for comments about her custody suit, she wasn’t available to offer any statements. According to court papers, the alleged bomber had not contacted the woman since January 2016.

Call Experienced New York Child Custody Lawyers

New York parents who are engrossed in a battle for the custody of a child will probably be experiencing a lot of stress and fear. It is never easy to leave the decision of whether your children will be with you up to the logic and reasoning of a court. In these cases, the wise counsel of a family law lawyer can be indispensable in easing stresses and protecting the rights of both the child and parent.

Source: Reuters, “Ex-partner of New York bombing suspect seeks child custody: court record,” Oct. 20, 2016.

New York Supreme Court to Decide Gay Marriage Child Custody Case

The New York Supreme Court will be answering a difficult legal question that has been sweeping the nation: Should we consider both spouses in a same-sex marriage to have the same child custody rights as spouses in a heterosexual marriage?

On September 1, the New York Court of Appeals heard arguments relating to a case involving a gay woman trying to obtain the right to visit a boy she claims to have raised along with her ex-spouse. The lawsuit is a challenge to the notion that only formally adoptive and biological parents should receive parental rights.

Gay rights groups around the nation are watching this case to see how it is decided because it could affect rulings on similar cases in other parts of the nation. These cases often involve couples where two lesbians were a couple when one spouse gave birth to a child via artificial insemination. According to plaintiffs in these cases, those who helped raise the child should be considered by the court to have parental rights — even in situations where there is no biological or adoptive connection to the child.

One family law attorney, who supports the opening of custody laws to include gay partners, said that families are different from the way they once were. He said that families are no longer the mom, dad and three children born to the same parents anymore. Indeed, New York families fall into so many different categories, it seems as if every case needs to be decided based on its own unique situation.

Because the instant case could affect gay parents in New York and the rest of the nation, it will be important to pay close attention to how this matter is decided. Until this case is decided, gay parents may want to consider adoption to protect their parental rights.

Source: Wall Street Journal, “Gay Custody Fights Redefine Legal Parenthood,” Sara Randazzo, Sep. 01, 2016.

Same-Sex couple Battles for Child Custody

A British photographer has been fighting the claims of her ex-girlfriend, who is attempting to garner parental rights over her adopted child. The lawsuit, which is playing out in Manhattan court, has forced the British mother to stay in Manhattan until the case is resolved rather than return to England with her son.

The mother is trying to get the case dismissed, but she has been hard-pressed to succeed against the woman who filed the custody suit, her ex-girlfriend, a multimillionaire New York businesswoman who has the extra money to throw at the court proceedings. Meanwhile, the British woman’s attorney has argued that her client is going bankrupt trying to save her parental rights.

Expansion of Parental Rights for Same-Sex Partners

The legal battle has been going on for three months now, and it was spurred by the New York State Supreme Court’s expansion of parental rights for same-sex partners who do not have biological or adoptive parental rights. According to the photographer, her ex-girlfriend should not have custodial rights over her child because the ex is not a legally adoptive parent, but just the godmother of her 6-year-old boy. The photographer adopted the boy in 2011 from Ethiopia. The American businesswoman says that she should have parental rights since the boy came to her house every Thursday night to have a sleepover and she regularly picked him up from school.

Contact a New York Same-Sex Divorce Attorney

As same-sex couples — whether married or no — continue to adopt children into their homes, courts throughout the United States will be tasked with reinterpreting how child custody laws apply to same-sex couples. At this time, there isn’t sufficient case law to make these matters anywhere close to cut and dry. As such, same-sex couples who intend to adopt a child together may want to discuss the matter with a lawyer who can explain how both sides of the couple can appropriately preserve their parental rights. If you need help with child custody in your same-sex divorce case, contact the experienced Albany divorce lawyers at The Colwell Law Group today.

Source: New York Post, “Mom asks judge to toss her ex-girlfriend’s custody lawsuit,” Julia Marsh, Nov. 23, 2016.

New York Woman Battles Child Services for Custody of Her Son

A New York City mother claims that the city took her son away from her and wrongly separated them for three years — which is over half her son’s life. The 36-year-old woman, who works as a high school English teacher in New Jersey is calling her child custody matter a “kidnapping. She says that her son does not want to be in the city’s foster system either and he wants to come home to her.

The little boy is currently one of 19 child plaintiffs involved in a federal class-action lawsuit against New York City’s Administration for Child Services. According to the lawsuit, children in the program who have been taken from their parents are spending double the national average amount of time in the foster care program. The lawsuit alleges that some of these children are subjected to physical and sexual abuse.

In this case, Child Services took the woman’s 2-year-old boy from her in August 2013 after she called police saying that the boy’s father was attacking her. She was then accused of neglect because she had left the boy in the care of the father.

Allegedly, the boy witnessed his mother being choked, bunched and having furniture threw at her, but he was never harmed. However, even though the woman and the boy’s father have since separated, the city will not return the now 5-year-old boy to his mother. Sadly, she is only allowed to visit her boy under supervision.

Child custody issues relating to children who have been taken by child services can sometimes be resolved by taking legal action. New York parents in a similar situation to the one described above may, therefore, wish to bring their issues before a family law court to get their children returned to them.

Source: New York Post, “Mom calls years-long war with city foster system ‘kidnapping’,” Susan Edelman, Aug. 21, 2016

Custody case for same-sex parents allowed to move forward

Now that same-sex couples can get married, the legal landscape has changed when it comes to gay rights. However, the parental rights of same-sex couples are still up in the air. This is partly because courts have yet to try enough cases to establish sufficient legal precedent to predict how same-sex custody cases will be decided.

One recent case could bring more clarity to the way New York family law courts decide same-sex child custody battles. The judge presiding over the matter recently ruled that the case will move forward in state Supreme Court. The case involves a former same-sex couple who cared for a 6-year-old boy together — a child that neither mother has a biological link to.

One of the mothers formally adopted the boy, but the other mother — who never tried to adopt him — is arguing that she fulfilled the role of parent for the child, even if she failed to formally adopt him. A such, she says that she should be afforded custody rights. According to the state judge presiding over the matter, this non-adoptive mother may have a valid claim to custody under the law, which is why he permitted the case to move forward.

In response, the adoptive mother says she formally adopted the boy by herself after she and the other woman broke up. She says the other woman was more like a godmother and, therefore, shouldn’t receive custody rights.

New York same-sex parents may not want to take their child custody rights for granted. By speaking with a family law lawyer, however, same-sex parents can evaluate the current status of their parental rights and take action where necessary to establish those rights in the event that they are lacking.

Source: New York Post, “Case moves forward in same-sex couple custody battle,” Julia Marsh, Jan. 13, 2017

The Colwell Law Group, LLC.  Coronavirus (COVID-19) Notice on Continued Operations

(updated 3/23/20 9:15 am)

The global impact of Coronavirus has been unprecedented, and just as each of you, we are taking the situation one day at a time.  Our thoughts go out to all who have been affected by the outbreak of coronavirus (COVID-19).  Please know that the Colwell Law Group takes the safety and wellbeing of our clients and team members very seriously. In accordance with the firm's emergency response plan, all team members have begun working via secure remote connections.  However, 100% of our regular operations will continue uninterrupted via these remote connections.

Most court clerks remain open to accept new filings and motions.  Emergency applications can still be heard.  However, previously scheduled appearances have been adjourned until further notice.  If you have a scheduled call or meeting with any member of the CLG team, you can expect it to proceed as scheduled.  Given the situation, all such meetings will take place over the phone or video conference until further notice.

Thank you for your understanding and patience during these trying times. We know that your family law issues do not just disappear because we must shelter in place.  In fact, in many situations the quarantine will only serve to make these issues worse.  CLG stands ready to help!  We are dedicated to serving your needs in this new normal and further your best interests as always.  While the developing situation surrounding COVID-19 is serious, at CLG we’re focused on combating fear with proactive solutions rather than reactive retreats.

For further information, please contact our Director of Operations, Jennifer Stevens at Jstevens@colwell-law.com or 518-462-4242. Thank you.