In New York, there is no legal presumption that child custody will be split evenly between parents. There are several factors to consider and things that shouldn’t be done when determining custody. This is why parents should understand their custody rights and arrangements and get on the same page as much as possible to maintain control of where they want their children to live and how they want their children raised. Regrettably, many couples are not at a place where they can agree upon these things at the time of their divorce.
A New York child custody attorney is well-versed in the complex field of child custody law and has the experience to navigate through the intricacies of the court system. They can provide guidance on how the courts may interpret various factors in a custody decision and can help parents present their case in the most favorable light. Attorney Juan Luciano and his team of New York City child custody and visitation lawyers can assist in negotiating agreements between the parents, with the aim of reaching a resolution that best serves the child’s interests, even in the most contentious of circumstances. Contact us today at (212) 537-5859 to schedule a consultation.
What is Joint Physical Custody?
Physical custody determines where a child will legally live. Joint physical custody sets out that the children will move between parents’ homes, but it is not necessarily a 50/50 split between homes. In most cases, joint physical custody will depend on what is most convenient to both parties. This is a couple’s opportunity to hammer out custody arrangements that work best for them mutually and independently. It is also essential for partners to spell this out as precisely as possible in their custody agreement to ensure against misunderstandings and disputes.
NYC Child Custody and Visitation Lawyer Juan Luciano
Juan Luciano
Juan Luciano is a seasoned New York City family law attorney with a strong focus on child custody, divorce, and domestic relations matters. After being admitted to the New York Supreme Court Appellate Division, Second Judicial Department in 2005, he worked alongside established family law attorneys across the city before opening his own practice in 2013. Since then, Mr. Luciano has built a reputation for resolving complex custody disputes with care, practicality, and a deep understanding of family dynamics.
Certified by the Appellate Division to represent both children and adults, Mr. Luciano is known for combining strategic legal advocacy with a compassionate, client-centered approach. He has served as President of the Bronx Family Court Bar Association, taught for the Practicing Law Institute, and contributed to discussions in leading publications like the New York Law Journal and Wall Street Journal. Mr. Luciano speaks Spanish fluently and maintains offices in Midtown Manhattan and the Bronx to serve families throughout New York City.
If the Parties Can’t Agree
If the two spouses can’t agree on how they will share the physical custody of their children, the court will get involved. As in all matters of child custody, the court’s main objective is the best interests of the children, not the two marital partners. Consequently, the court will consider many factors when determining physical custody:
- Where the child’s primary residence has been and how long they have lived with each parent.
- Each party’s skills as a parent
- If there has been any history of drug or alcohol abuse or domestic violence
- What is the best scenario to keep siblings together?
- The mental and physical health of both parties
- Which parent is most likely to foster a good relationship with the other
- Which parent is most likely to offer a positive home environment
- Work schedules of each party
In a perfect world, equal joint physical custody would allow both parents a balanced living arrangement, but once the courts get involved, they will look closely at both parents to determine what they feel is best for the children. This means that one parent may be given considerably more legal and physical custody of the children than they would have liked.
Residential Custody in NY
Also referred to as physical custody, residential custody is the term used to identify which parent a child primarily lives with following a separation or divorce. In New York, the determination of residential custody is guided by the ‘best interests’ principle, which aims to prioritize the child’s well-being and contentment.
The ‘best interests’ criteria take into account various factors such as the child’s age, physical and emotional health, the emotional bond between the parent and the child, the capability of each parent to provide a steady and nurturing environment, and the continuity of the child’s existing routines, which may encompass school, activities, and community connections.
Although it is feasible for a child to split their time equally between both parents under a joint residential custody arrangement, this is not commonly seen in NY due to the practical difficulties it can pose. Typically, primary residential custody is granted to one parent, while the other parent, referred to as the noncustodial parent, is awarded visitation rights. The specifics of these visitation rights can range widely from case to case and may be either supervised or unsupervised.
Given the intricate nature of custody determinations, it’s vital to have skilled legal representation. A lawyer well-versed in child custody laws can provide guidance throughout the process, aiding you in understanding your rights and responsibilities. Furthermore, they can assist you in presenting a strong case to the court, advocating on your behalf, and ensuring the court’s decisions are in line with your child’s best interests.
The Role of the Attorney for the Child (AFC)
When parents in New York cannot agree on a custody arrangement, the court must determine what is in the child’s best interests. In contested cases, this process often involves a key player many parents do not expect: the Attorney for the Child (AFC).
What Is an Attorney for the Child?
The Attorney for the Child is a licensed lawyer appointed by the court, whether it be the Family Court, the Supreme Court, or the Surrogate’s Court. Their role is to represent the interests and position of the child in custody proceedings. Formerly known as a law guardian, the AFC’s responsibilities are defined under section 7.2 of the Rules of the Chief Judge and are governed by the same ethical and procedural standards that apply to all attorneys.
The AFC does not serve as a neutral party or as a mental health evaluator. Instead, they act as a dedicated legal advocate for the child and are bound by rules concerning confidentiality, avoiding conflicts of interest, and proper communication practices.
Advocating for the Child’s Voice
In custody proceedings where the child is the subject of the case, the AFC must zealously advocate for the child’s position. To do this, the attorney must:
- Consult with the child in a way that is appropriate for the child’s age and level of understanding
- Determine the child’s wishes and evaluate whether those wishes reflect a considered and voluntary judgment
- Promote the child’s expressed preferences, even if the attorney personally believes another option would be better
However, there are specific situations where the AFC may advocate for a position that differs from the child’s stated wishes. This may occur when the child lacks the capacity to make an informed decision, or when following the child’s preferences would expose them to a serious and imminent risk of harm. Even in such circumstances, if the child requests it, the AFC must still inform the court of the child’s wishes.
A Central Role in Custody Decisions
The recommendations made by the AFC often carry considerable weight with the court. Judges rely on the AFC not only for legal representation but also for informed perspectives on the child’s needs, living situation, and emotional well-being. To fulfill this role effectively, the AFC is expected to:
- Begin representation promptly upon appointment
- Meet with the child early and maintain regular contact throughout the case
- Investigate all relevant facts and review documents
- Consult with necessary professionals and experts
- Participate actively in all court proceedings
- Monitor the enforcement of court orders
- Evaluate and pursue appeals when appropriate
This level of engagement ensures that the child has a meaningful voice throughout the legal process and that their rights and interests are protected at every stage.
| Your Original Point | New York AFC Responsibility |
|---|---|
| Consult with the child in a way appropriate for the child’s age and level of understanding | AFC must consult with and advise the child in a manner consistent with the child’s capacities and maintain thorough knowledge of the child’s circumstances. |
| Determine the child’s wishes and evaluate whether those wishes reflect a considered and voluntary judgment | If the child has a knowing, voluntary, and considered judgment, the AFC must advocate for that position, even if they personally disagree, unless it poses a substantial risk of serious harm. |
| Promote the child’s expressed preferences, even if the attorney personally believes another option would be better | The AFC should advocate for the child’s wishes in court and legal proceedings, respecting the child’s right to be heard, provided it aligns with legal and ethical obligations. |
The Importance of Choosing the Right Lawyers
Studies have shown that kids are able to bounce back from the divorce of their parents. Even if their parents split up, they will likely grow up healthy and happy. Children can also develop well even if their parents are not in love with each other, but remain together. However, children may not be able to recover as easily from the bitter and long-running divorce battle between their parents. Children suffer more damage the longer and harder the divorce battle is.
It is important that parents try to settle their differences without the intervention of the Court, especially in relation to visitation and custody issues. If possible, avoid an extended, nasty battle. It is important to seek the legal advice of an experienced lawyer.
Matters such as child custody require a highly skilled lawyer who is familiar with the laws and procedures. A lawyer must be committed and dedicated to your family, able to absorb all the facts and do the work required to present your case to a successful outcome. A skilled, creative lawyer will help you identify connections that you may not have noticed on your own and build a case to win. These issues are a good example of why you will need to have a competent negotiator who is skilled at mediation and can convince the opposing party to agree to a fair resolution.
Contact us today at (212) 537-5859 to schedule a consultation.
