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Brooklyn Family Law, Blog

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October 20, 2014
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October 21, 2014
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Custody of my Children, What is the Process?

Custody of my Children, Brooklyn Family Law PracticeAssuming that there is no custody order at all and that this is an original petition for custody, you file a petition for custody. Think of the petition you file as the framework of your entire custody case, the foundation of everything else that will need to happen. This means that you need to include all of the details in your custody petition to support your case and increase your chances of success. Once you file the petition and it is processed by the Court, the other side needs to be served with the papers. The Court will have scheduled your first Court appearance for custody so the papers you are having served will have the first Court date on them. Often the other side will file a cross-petition for custody in response to your petition, sometimes this will not happen.

Sometimes a temporary custody order is made at the first appearance, sometimes it is not. This depends on far too many circumstances than can be discussed in this short answer. At the end of that first appearance, another appearance will be scheduled and an attorney will be assigned to represent your child or children. At every appearance, a new appearance will be scheduled up to and including trial, and there will be several appearances. Custody actions take several months from beginning to end.

Between your first appearance almost up until the custody trial, you will be working with your attorney to gather the evidence you will need for your custody trial. This may include various types of paperwork, witnesses, perhaps medical or psychological records, depositions and various document demands. It is even possible that you will want a psychological evaluation of the other side as part of your proof. You will need to establish reasons for needing this so that the Court will make an Order for you to get the evaluation. Often, the Court will then require everyone to have a psychological evaluation for your custody action.

Once evidence is gathered and prepared, you are ready to go to trial. This does not mean that you actually have to have a custody trial. During all of this time efforts can be made to settle your custody case, and it is likely that settlement can happen at some time during the course of your custody action. But if it does not, you have to be ready to move forward for the custody trial. Sometimes the process of gathering the information in preparation for your custody trials acts to make the other side more willing to discuss settlement.

While all of this is happening, depending on where your children are actually living, you may want to start an action for child support as well. Child support starts adding up from the moment your file your support petition, so the sooner filed the better. Oddly, you do not necessarily have to have a custody order to get child support which can be based on the reality of where the children are living rather than whether there is an order for custody in place. Through this action, you may obtain a temporary child support order while you are going through your custody action to aid you in support of your children during the process of obtaining custody.

Custody trials most often result in one person getting full custody and the other person getting visitation, which can be called various things such as “custodial time” or “parenting time,” but whatever you call it, it is still visitation. Though the Courts try to form a visitation schedule around a person’s schedule, what is generally seen is a schedule of every other weekend from Friday to Sunday evening, one evening each week, every other holiday, a couple of weeks in the summer and every other birthday. Occasionally there may be a more extensive schedule including, perhaps, a split summer or every Easter because the other parent does not celebrate that holiday. Maybe there will be two evenings each week or one overnight a week. But the fact remains that visitation can be limiting in terms of the relationship between parent and child to bloom.

If the parents, instead, can work out a schedule that works with their working schedules that may afford each of them both substantial time with the children, that can be done through drafting the appropriate agreements. Even if a visitation schedule is all that is available to one parent in terms of their own work schedule, the parties can set that up as they wish and avoid the trial by doing so. Settling before trial allows the parents to establish the schedule they want and avoid leaving it up to a judge who may or may not care what your respective schedules are. This is always something worth giving serious thought. These agreements can also set forth more than a custodial schedule and can include rights to both parents for access to medical, educational, child care and like records of the children. They can also include provisions to prevent the relocation of the children by either party. These agreements are a form of contract and can include any provision either of you believe is important for your custody arrangement for your children and both of you as long as the terms are ultimately acceptable to the Court. You will take your agreement and ask the Court to accept it as your settlement in your custody case.

Our Brooklyn Family Law Practice is currently accepting custody actions and would be happy to speak to you about your specific circumstances. Please contact us via the Contact form on every page of our website or call Toll Free 855 736-2829.