CUSTODYCUSTODY

Children’s Law Center New York Clinic Seminar

CustodyCustody

What does it mean?What does it mean?

Why is it important?Why is it important?

CustodyCustodyPhysical Custody Legal Custody

Medical Educational Religious Decisions impacting well beingTypes of Custody–Sole Custody– Joint Custody–No joint custody when history of DV

StandingStandingCustody (until 18 yo)

Blood relation MarriagePersonal contact with child

Guardianship (until 21 yo)Same as custody, however, guardianship will not be

granted to person with a felony conviction or history of neglect or abuse

Blood relation MarriagePersonal contact with child

Visitation (until 18 yo)ParentSiblingGrandparent

Burden of Proof in Burden of Proof in Custody CasesCustody Cases

Burden is always on the Petitioner1.Parent v. Parent

Best interest of the child

2.Non- Parent v. Parent Two Prongs:

1. Extraordinary circumstances2. Best interest of the child

3.Non-Parent v. Non-Parent Best interest of the child

Evidence in Custody CasesEvidence in Custody Cases

1. All relevant evidence can be produced up until the time that court renders a decision.1. Dirty Laundry2. Recommendation of Mental Health

Professional3. Therapists, teachers4. Financial status 5. In camera of child 6. Position of Attorney for Child

Best Interest Factors Best Interest Factors – Long-term stability

Material needs

Educational welfare

Emotional stability

Which parent is most likely to encourage relationship with non-custodial parent

Medical welfare

– Siblings– Use of corporal

punishment– Domestic violence

DRL§240(1)• Must be

considered BUT no presumption in favor of Non- abusive parent

• AFC’s Position

–Medical welfare

– Siblings

– Use of corporal punishment

– Domestic violence DRL§240(1)• Must be considered BUT no

presumption in favor of Non- abusive parent AFC’s Position

Non-Parent v. ParentNon-Parent v. ParentExtraordinary Extraordinary CircumstancesCircumstances

BENNETT v. JEFFRIES Pre-Bennett: Focus on parental

fitness- Neglect, abuse, abandonmentPost- Bennett: Parent can be deprived of

custody even if parent is fit - based on a prolonged separation and a child’s attachment to a non-parent

Extraordinary Extraordinary CircumstancesCircumstances

– Abandonment – Longstanding

placement with a non-parent

– Death – Negative impact

on sibling (step-parent)

– DV– Substance abuse

–Mental illness – Abuse – Psychological

bond to non-parent

– Poor relationship with parent

– Death of parent

Modification petitionsModification petitions• Parent v. parent –Substantial change in circumstances

• Parent v. non-parent - –No prior finding of EC – non-parent

must prove existence of EC–Prior EC finding – parent must prove

substantial change in circumstances

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118-21 Queens Blvd.Suite 417Forest Hills, NY 11375TEL 718-544-3499FAX 718-544-4450Map         Directions

36 Richmond TerraceSuite 304Staten Island, NY 10301TEL 718-447-8384FAX 718-447-3893Map        Directions

Every child at the center of a court case has a unique voice. And that

voice must be heard