Have you and your spouse accused each other of substance abuse, domestic violence or neglect in your child custody dispute? Often, parents think that lodging these types of allegations against the other parent will mean that the “bad parent” will lose custody and/or visitation with the children. If one parent makes an accusation, the other will respond with similar claims. However, custody rules are complicated. If you are in this position, it is important to work with an experienced attorney to help ensure you don’t jeopardize your own position with the judge.
How Do Courts Decide Child Custody and Parenting Time?
In New York, courts follow a standard known as the “best interests of the child,” which looks at various factors to determine custody and parenting time. Generally, courts try to ensure that both parents have an equal opportunity to maintain a strong relationship with their child. As a result, judges won’t restrict parenting time solely based on one parent’s objections to the other’s behavior. Instead, a parent must demonstrate abuse, neglect or a drug or alcohol problem that genuinely interferes with the other parent’s ability to parent the child. Further, even if such evidence is presented, the court is more likely to impose certain conditions on parenting time rather than eliminating it.
What Happens If Your Spouse Has Engaged in Domestic Violence, Neglect or Substance Abuse?
In cases of domestic violence, it is important to document all instances of abuse and notify law enforcement or seek an order of protection as soon as possible. If an order of protection is granted, it will continue until there is a hearing on the allegations. The hearing allows both sides to present their arguments. The issue of child custody and parenting time will be dealt with separately, although it is possible to consolidate the divorce, criminal and custody issues together in one court action in the Integrated Domestic Violence Part.
Notably, the court will still apply the best interests of the child standard to custody and visitation decisions in abuse cases. Depending on the circumstances, the court may appoint an attorney for the child and institute certain conditions on visitation, such as requiring parenting classes or supervised visitation, rather than restricting all visitation.
In the case of neglect or drug or alcohol abuse, the court will also investigate these claims utilizing the services of the Administration for Children’s Services or a drug or alcohol evaluation by an appropriate institution to understand the nature and extent of the concerns within the family system at issue. The court will then use the best interests standard to decide how custody and visitation are allocated. Depending upon the circumstances, the judge may require supervised visitation, regular drug and alcohol testing and/or a treatment program until the issues in question are properly addressed.
Should You Keep Your Children Away From Your Spouse?
Parents should be careful how they behave toward their children. One of the most important factors the court considers in determining the best interests of the child is “[e]ach parent’s ability to cooperate with the other parent and to encourage a relationship with him or her, when it is safe to do so.” What this means is that judges will not support a parent who interferes with the other parent’s relationship with the children without a showing of abuse or neglect of the children. This is known as parental alienation and it occurs when a child refuses to see their other parent and it is demonstrated that your behaviors created or exacerbated that child’s animosity towards his/her other parent. As a result, you shouldn’t bad mouth your spouse or withhold visitation because it can result in loss of custody and other repercussions.
What If Both Parents Allege Bad Parenting or Can’t Settle Custody and Visitation with the Help of an Attorney for the Child?
Each parent’s actions will be evaluated. If the parties are unable to resolve custody and visitation with the aid of an attorney for the child, a forensic psychologist or mental health professional may be appointed by the court to assess the situation and provide information. If the parties still can’t settle parenting after the report is issued, a custody trial will ensue where the judge will render a decision.
If you are experiencing conflicts regarding child custody or visitation, it is crucial that you carefully document instances of abuse or neglect and discuss them with an experienced attorney who can advise you on the best way to address your concerns. Contact us for a consultation to learn how we can help you in your case.