When we consider matters of Child Custody on Long Island, we usually think that one parent will have physical custody of all the children and the other parent will have Visitation rights. However, in reality, children are separated from their siblings in a divorce more often than you might think. This can occur for a number of reasons, including, but not limited to, one child’s desire to live with a different parent than the other. In these cases, Custody of one child may be awarded to the mother and Custody of another child may be awarded to the father.
If you are contemplating a divorce, or have recently begun divorce proceedings, you will have to come to agreement with your spouse over matters of child custody. Among considerations that may have crossed your mind may be not only your right to see your children if you are not awarded physical custody, but also perhaps the rights of your parents or your siblings to see their grandchildren or niece or nephew. What you may not have considered, until now, are the rights of your children to spend time with their siblings if they are living separately after your divorce.
What is the Governing Law in New York Regarding Familial Visitation Rights?
As most issues that arise during the divorce process, the issue of a sibling’s right of visitation is governed by Section 71 of New York’s Domestic Relations Law. Under this section, a child’s brother or sister (or the parent or guardian of the brother or sister if the individual is a minor) can petition the court for visitation rights. As in all cases involving children, the court decides and directs any rights the sibling or siblings may have to visitation in accordance with what it believes are in the best interest of the child in question.
Because this is a sensitive, and perhaps emotional decision that may arise during the divorce, if at all possible it should be made between you and your partner with the assistance of your respective divorce attorneys, ahead of time. However, because this is such an emotionally charged issue that often leads to hurt feelings, it may be difficult to come to agreement on these issues outside of court and you may wind up litigating them in front of a judge.
The United States Supreme Court in Troxel v. Granville provided guidance for the New York State legislature in creating its grandparent visitation statute, which is also applicable to siblings. Under this statute, the court must determine if the individual filing the petition has standing, and then if this is satisfied, the court will determine if visitation is in the best interest of the child. Generally, these visitation statutes require some type of legal, biological, or familial relationship between the party filing the petition and the child in question. In addition to looking into the relationship between the child and the party who is seeking visitation, the court will look into the specific circumstances of the child’s environment and note if the individual was aware of negligent or negative treatment of the child and failed to act, as well as the relationship between the party seeking visitation and the parent with whom the child currently resides. Courts are generally reluctant to permit visitation rights if it feels that the person seeking those rights may not be a positive influence in the child’s life.
Does the Court Take My View as a Parent into Consideration At All?
One would like to believe that arguing between family members about child visitation is a rare occurrence. However, if you find yourself faced with this situation, remember that as your child’s parent, you have a fundamental right to raise him or her as you see fit, and this includes affording you a presumption that if you are denying visitation rights to certain individuals, you are doing so because you believe that it is in the best interests of your child. But of course, as your divorce attorney will likely inform you, your desires are not the final answer, and the court will require visitation if its finds this would be in the child’s best interest.
While you or your spouse may harbor negative feelings toward one another, it is not as likely that your child harbors negatives feelings toward his or her siblings. As most of these posts have noted, when a child’s parents are going through a divorce the child needs certain constants to remain in his or her life, and his or her siblings are no doubt one of those things.
Questions About Child Custody and Visitation on Long Island?
To learn more about what you need to know about Child Custody on Long Island, visit this page on Child Custody or contact us at 631-923-1910 for a complimentary consultation.
Need Help with Child Custody or Visitation in Your Long Island Divorce?
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