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What Sort Of Visitation Agreements Can Be Awarded Or Arranged?


The limitations on parenting time are governed by practicality and creativity. Obviously, work schedules, school schedules and the distance between the relevant homes place limitations upon a parenting schedule. It does not make great sense to award parenting time during the hours one must work. (Panaro v. Panaro, 133 A.D.3d 1306 [4th Dept. 2014]). Likewise, if parents live hours apart, midweek visits are impracticable. But beyond these practical limitations, parties and courts can be very creative. There is no requirement that parenting must be every other weekend, or fixed to some rigid schedule. Courts are only limited to the best interests of the child, which can allow them to impose them many different schedules.

Can The Court Reject A Custody Or Visitation Plan Even If Both Parents Agree On It?

If a court believes the agreement is not in a child’s best interest, the court can reject it. One can imagine a circumstance where a battered spouse agrees to a parent plan out of fear despite real danger to the child. That said, I cannot recall an instance where the court actually did reject an agreement mutually agreed upon.

When Can A Child Decide Who He Or She Will Live With?

The short answer is the child can decide when he or she turns eighteen years old. But as a child ages and matures, his or her voice receives greater weight. In Maxwell v. Watt, (152 A.D.3d 693 [2nd Dept. 2017]), the court wrote “[t]he wishes of the child are not controlling but are entitled to great weight where the child’s age and maturity would make the child’s input particularly meaningful.” Another court phrased the same thoughts slightly differently: “Although not determinative, the expressed wishes of the children are some indication of what is in their best interests, considering their age, maturity and potential to be influenced.” (Cheryl Y v. Cynthia Y, 152 A.D.3d 829 [3rd Dept. 2017]).

In Braga v. Bell, (151 A.D.3d 1924 [4th Dept. 2017]), the court disagreed with the wishes with the child. The court noted the child was young. In Cook v. Cook, (142 A.D.3d 530 [2nd Dept. 2016]), the court considered the views of a twelve year old, although there were other factors favoring the position desired by the child. Rivera v. LaSalle, (84 A.D.3d 1436, 1439 [3rd Dept. 2011]), noted that a mature nearly eleven year old child’s unequivocal wish was, at minimum, “entitled to consideration.” In most cases where the court agrees to the custodial arraignment favored by the child, it notes other factors that also favor that custodial arrangement. (See Matter of Jennifer BB. v. Megan CC., 150 A.D.3d 1340, 1341, 53 N.Y.S.3d 725 [3rd Dept. 2017] [where domestic violence, mental illness and other factors favored the same result sought by the child]; Bush v. Miller, 136 A.D.3d 1238 [3rd Dept. 2016] [where the mother’s serious alcohol dependence favored the same result sought by the child]).

In Oscar S v. Joyesha J, (149 A.D.3d 439 [1st Dept. 2017]), all four children expressed their wish to live with their mother. Yet the courts ruled against them. The court noted the mother made a false sexual abuse allegation against the father and she did not produce the children for scheduled visitation. In a case brought to change a court order based upon the wishes of a child, Yeager v. Yeager, (110 A.D.3d 1207 [3rd Dept. 2013]) wrote that “[a]though a child’s wishes can support the finding of a change in circumstances, they are but one factor and are not determinative.”

Do The Courts Favor The Mother Over The Father In A Custody Case?

In child custody determinations, neither parent has a “prima facie right to the custody of the child” (Domestic Relations Law 70[a]. As a matter of law, the answer is no. But I can give an example that may test the limits of New York’s public policy of gender neutrality in child custody determinations. Consider a custody dispute over an infant who breast-feeds. New York public policy appears to encourage breast-feeding. (Public Health Law 2505-a). Despite policies that encourage gender neutrality, the law cannot neutralize biological differences between genders. I know if no New York case that says explicitly that a breast-feeding mother has an advantage over a father, but it is difficult not to see the practical implications of this biological difference.

In J.F. v. J.C.M., (2014 WL 10805970 [Superior Court of Pennsylvania 2014]), a Pennsylvania court saw the breast-feeding issue raised by the mother and other claims as lacking merit. A North Carolina case specifically rejected the mother’s claim that she should have custody of a 28 month old child because of a special bond formed through breast-feeding. (Greer v. Greer, 175 N.C.App. 464 [Court of Appeals of North Carolina 2006]). I anticipate New York Courts would see things much the same. Nonetheless, I wonder whether trial courts confronted with a baby just weeks or months old who is being breast-fed, and with medical evidence demonstrating health advantages of breast milk, would not see an advantage to the mother. We should remember that most of these cases will not be appealed, because by the time one perfects the appeal the child will presumably no longer being breast-fed.

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