Will I lose consideration for joint physical and legal custody?
3 attorney answers
This question is a confusing mess of issues and facts. There will be pain if the asker does not retain counsel.
First and foremost, the state owns the child. The doctrine is the classic parens patriae that has been euphemised over the years to be known as "best interests of the child." The state decides best interests and no one else.
Here, it appears the trial judge sees that two otherwise competent and capable parents can decide the fate of their child rather than the state. There is a court invitation to settle the petition by a consent order. However, the man is recalcitrant. We call this "dragging out the case."
The man is also throwing into the mix some hackneyed accusations against the asker. These are intended to sway the court's view against the asker and indeed the asker is falling for them. A savvy judge will know these accusations can never be proven at trial and are only self-serving attacks against the asker. However, what if the judge is clueless and may accept these accusations as fact at trial? That is the actual question here. This variability of the quality of our family court judges makes the underlying question posed by the asker unanswerable.
The response is to have an attorney manage the development of the evidence or the lack thereof. The appellate standard in New York for child custody cases is the sound and substantial basis in the record standard. So, if the father makes baseless claims and the judge accepts them, then an appeal will yield a reversal of custody.
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If you filed an initial petition for "custody," you can always resolve the case with joint custody. If you initially filed for "joint custody" & are now seeking "sole custody," then you're best advised to file an amended Petition. Schedule a consult with a Bronx Family Law Attorney for a full assessment.
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If you and the father can agree upon joint physical and legal custody, most judges will order it, but if you cannot agree it is extremely unlikely a judge would order this after a trial. That is because the ability to make "joint decisions" is the foundation for joint legal custody, and if the parties require a trial to determine who will make decisions, then it follows that the parties will not be able to make other decisions together and thus, "joint legal custody" will not work.
All of Ms. Brown's responses to questions posted on AVVO are intended as general information based upon the facts stated in the question, and are provided for educational purposes of the public, not any specific individual, and her response to the question above is not legal advice and it does not create an attorney-client relationship. Ms. Brown is licensed to practice law in New York. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state.
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