Child Custody and Visitation in New York - FAQs

This article provides answers to frequently asked questions about custody and visitation in New York.

Is the Noncustodial Parent Always Entitled to Visitation With the Child?

When a court awards custody to a parent (custodial parent), the noncustodial parent is usually entitled to visitation, unless there is some showing that visitation with the noncustodial parent would be detrimental to the child, such as in cases where the noncustodial parent has a history of child abuse or neglect. The idea is that children generally do better when they have contact with both parents, regardless of which parent has custody. Typically, when the court enters a custody order, it will also issue a visitation order which specifies the days and times that the noncustodial parent can visit the child.

How can Noncustodial Parents Enforce their Visitation Rights?

When custodial parents interfere with noncustodial parents’ visitation rights, noncustodial parents can go to court and file a “Petition for Enforcement of a Visitation Order” (legal paperwork that is also called a “violation petition). This petition will state that the custodial parent violated the court's visitation order. The noncustodial parent should be prepared to testify and give details of the specific occurrences of interference, such as how many times the custodial parent interfered with visitation and when. The court will then hold a hearing, and if there are sufficient facts to find a violation, the judge can change the visitation order and/or impose sanctions or a fine on the custodial parent.

Can a Noncustodial Parent stop Paying Child Support if the Custodial Parent Interferes with Visitation?

No. Courts view child support and visitation as separate issues. A noncustodial parent cannot stop making child support payments unless authorized by a court. If a custodial parent interferes with visitation, the noncustodial parent’s only remedy is to go to court and ask for a suspension of child support payments. Noncustodial parents that have been denied visitation should never take matters into their own hands by failing to pay child support. Failure to make child support payments can result in “contempt of court,” which means you have violated a court order and can be fined or even ordered to serve time in jail.

Conversely, some New York cases have found that a custodial parent cannot ask the court to compel a noncustodial parent to make child support payments where the custodial parent has prevented visitation altogether. However, this is not to say that all courts will do so. It is entirely within the court’s discretion to suspend or cancel child support payments as a result of an interference with visitation. Each case varies by the specific facts, but courts will most likely consider the financial needs of both parents and what is “equitable” or fair in all situations. The bottom line is that simply refusing to pay child support is never a good idea, especially given the possibility of fines and jail time. Remember, failing to pay child support harms your child above all else, and judges don’t like it when children do not receive the financial support they are legally entitled to.

As mentioned above, if noncustodial parents find themselves in this situation, they must go to court and file a violation petition. If the court determines that a suspension of child support payments is warranted, the order will be prospective only. This means that the order only applies to future child support payments.

Can a Custodial Parent Prohibit Visitation if the Noncustodial Parent Fails to Pay Child Support?

A custodial parent cannot stop or interfere with visitation if the noncustodial parent fails to pay child support. Just as a noncustodial parent cannot use self-help mechanisms to handle a denial of visitation, a custodial parent is not entitled to suspend visits unless there is a court order. The paramount consideration is the best interests of the child, and visitation between the noncustodial parent and the child is presumed to be beneficial (unless it is found to be detrimental to the child). In fact, New York courts have held that visitation cannot be terminated solely for reasons unrelated to the welfare of the child.

If custodial parents find themselves in this situation, the remedy is to go to court and file a “ Petition for Violation of a Support Order,” asking the court to take action against the noncustodial parent. If the court finds a violation, the noncustodial parent can be held in “contempt of court,” which means he or she has violated a court order and can be fined or ordered to serve time in jail.

How can a Child Support Order be Modified?

Either parent can ask the court to modify or change a custody order. The parent requesting the change must go to court and file a petition asking for a modification of the custody order and prove that there has been a “substantial change in circumstances” since the original order was issued. A hearing will then be held by the court and the standard used will be the “best interests” of the child.

Some examples of “substantial circumstances” may include relocation of the custodial parent, poor parenting or remarriage.

Can Visitation Ever be Suspended?

Visitation may be suspended only by a showing of “exceptional circumstances,” which means that if visits were to continue, it would be detrimental to the welfare of the child. Examples of exceptional circumstances include physical harm or serious emotional strain if the child were to continue to have visits with the noncustodial parent.

Resources

For general custody and visitation FAQS click,  here

For a copy of a sample petition for enforcement of a visitation order click,  here

For a free DIY program offered by New York State courts which assists parents in filing visitation enforcement petitions click,  here

For a copy of a sample petition for violation of child support click,  here

For a free DIY program offered by New York State courts which assist parents in filing custody modifications petitions click,  here

For sample custody and visitation forms, click  here

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