At Aiello & DiFalco LLP, we have extensive experience litigating child custody disputes when parents cannot agree on a parenting plan after a divorce or separation. These disagreements may range from where a child will primarily reside and how visitation will be arranged to who will make decisions about the child’s upbringing. 

While many child custody disputes are settled without court intervention, we will take your case to trial if necessary. Above all, you can depend on us to protect your parental rights and work in your child’s best interests. Call us today for a consultation. We represent clients throughout Long Island and New York City.

Reasons To Litigate Child Custody Disputes

Child custody cases are typically litigated for several reasons:  

  • Disagreements over custody arrangements – The most common reason for litigation is that parents cannot agree on a custody arrangement. They may disagree on who should have physical custody (where the child lives) and/or legal custody (who makes decisions about the child’s upbringing).
  • Concerns about the child’s safety – If one parent believes that the other parent poses a risk to the child’s safety due to issues such as domestic violence, substance abuse, or neglect, litigation may be necessary to protect the child.
  • Relocation issues – If the custodial parent wishes to move to another city, state, or country and take the child with them, the other parent may oppose the move and initiate litigation to prevent it.
  • Modifications to existing custody arrangements – If a parent wants to change an existing custody order because of changes in their work schedule, the child’s needs, or the other parent’s behavior, they may need to go to court to request the change.
  • Enforcement of current orders – If one parent is not following the current custody and visitation order, the other parent can pursue litigation to enforce the order.
  • Parental alienation claims – If one parent believes the other is intentionally turning their child against them through badmouthing, limiting contact, or other damaging behavior, they can ask the court to intervene.
  • Disputes over parenting decisions – Even when parents share legal custody, they may disagree on significant decisions, like where the child should go to school or what medical treatment they should receive. These disputes can end up in court.

Keep in mind that litigation can be stressful and costly, and it’s generally beneficial to try to resolve disagreements through negotiation or mediation whenever possible. However, in some cases, such as when a child’s safety is at risk, litigation may be necessary. That’s where Aiello & DiFalco can assist you. We have the skills and experience to negotiate and litigate child custody disputes and will protect your rights and your child’s rights in and out of the courtroom. 

About The Child Custody Litigation Process in New York

The process starts when one parent files a petition in family court requesting custody or changes to an existing custody arrangement, either as a motion during or after the divorce proceeding or a separate family court proceeding. The other parent has the opportunity to respond to the petition. They may agree with the petitioner’s terms or propose their own. If they disagree entirely, they might file a counter-petition.

In some cases, the court may require parents to participate in mediation or parenting classes to encourage them to resolve their issues and come to a mutual agreement without court intervention. Mediation may not be allowed or appropriate if there are domestic violence allegations. If no agreement is reached, the case may proceed to a hearing or trial.

The court is likely to appoint an attorney to represent the children and to voice the children’s concerns or position (or to substitute their own judgment if the children are too young or otherwise unable). The court may also order an evaluation of the child and family. A neutral third party, typically a social worker or psychologist, will observe and interview the parents and child and then provide a report to the court with recommendations regarding custody and visitation.

Depending on the circumstances, the court may issue temporary orders for child custody and support to establish immediate guidelines for the parties. If the parties still cannot reach an agreement, the case will go to trial. Each party will present their case, including any evidence and witness testimonies. 

The judge will consider all presented evidence, make a final decision, and issue a custody order based on what they believe serves the child’s best interests, a standard that considers factors such as the child’s needs, the ability of each parent to meet those needs, and the child’s relationship with each parent, etc. The order will outline each parent’s rights and responsibilities, including custody and visitation schedules.

Because child custody litigation can be emotionally taxing for the parents and children, the courts encourage negotiation and mediation when possible to limit the stress on families. In any event, having informed legal representation is essential to protect your interests and those of your children. 

The Potential Outcome of Child Custody Litigation

The courts in New York can order different types of child custody arrangements, including: 

Legal Custody

Legal custody refers to the right and responsibility to make major decisions about a child’s upbringing, including decisions about education, medical care, and religious upbringing. There are two options in this regard: 

  • Joint legal custody – In this arrangement, both parents share decision-making responsibilities for their child. The parents must communicate and cooperate to make decisions. Joint legal custody is quite common and is favored by the courts, unless there’s a compelling reason not to award it, such as abuse, neglect, or domestic violence.
  • Sole legal custody – One parent has the right to make all major decisions about the child’s upbringing without consulting the other parent. Sole legal custody is less common and typically awarded when one parent is deemed unfit or unable to participate in decision-making for the child due to substance abuse, mental health issues, or a history of violence or neglect.

Physical Custody

Physical custody refers to where the child primarily resides. The court may order: 

  • Joint physical custody – Also known as shared custody, this arrangement means that the child spends substantial time living with each parent. Joint physical custody requires a high degree of cooperation between parents and is usually only granted if the parents live close to one another.
  • Sole physical custody – One parent is designated as the custodial parent, meaning the child lives with them most of the time. The noncustodial parent typically has parenting time or visitation rights, which can range from limited, supervised visits to a schedule in which the child spends a significant amount of time with both parents.
  • Primary physical custody – In this arrangement, the child lives with one parent most of the time, but the other parent has significant parenting time with the children.

In New York, the most common type of child custody arrangement tends to be primary physical custody with ample parenting time for the other party, while both parents share joint legal custody. This arrangement allows both parents to be involved in their child’s life and decision-making, even if the child lives primarily with one parent. Ultimately, the guiding principle in all child custody determinations is the best interests of the child.

Talk To An Experienced New York Child Custody Litigation Attorney Today

If you are facing a child custody dispute, turn to Aiello & DiFalco in Garden City. When amicable solutions cannot be found, we are fully prepared to represent you in family court and will always work in the best interest of your child. Contact us today to discuss your case.