NY Divorce 101: The Issues Of Custody, Visitation & Fathers' Rights


Filing for divorce is never an easy undertaking – from the emotional aspects related to the divorce itself to the confusion often surrounding the issues of custody, visitation and fathers' rights. Here is some basic information about all three from a New York divorce lawyer knows too well what families go through during this difficult time.

NY child custody issues

We asked Elliot Schlissel, a veteran New York Attorney whose practice area includes divorce, estate planning and many others, what New York courts look at when dealing with child custody. He told us that the standard in New York is to determine what is in the child’s best interest and explained:

Courts look into who is the primary nurturing parent; who spends more time with the children; who deals with the children’s needs; who goes to parent-teacher conferences; who takes the children to the doctor; who buys the children clothes; who makes them breakfast, lunch and dinner; who sees that their homework is done, etc. Courts try to ascertain which parent has the greater impact in the child’s life and usually that parent, in a contested custody matter, is given custody of the children. Courts also take into consideration what the children want, although that is not a controlling factor.

Typical NY visitation schedule

The typical visitation schedule for a parent who does not have primary custody of a child in New York is normally every other weekend and every other holiday, according to Schlissel. He explained:

This includes all school holidays, school recesses such as Thanksgiving, Christmas and Spring break/Easter vacation. The nonresidential custodial parent usually obtains parenting time (visitation) with the children from two to four weeks each year when he or she is off from work.

Courts today are more interested then they have been in the past in giving the non-custodial parent greater access to the children. Along with the every other weekend visitation, we very often have it set up so the non-custodial parent sees the children during the evening on two weekdays for dinner during the week. We advise our clients that it enriches children lives to have relationships with both parents.

New York Fathers' rights becoming more recognized

It used to be that mothers generally got custody of the children. However, Schlissel says that fathers' rights are becoming more recognized. He told us:

Up until approximately 1989, it was presumed that the mother would get custody of the children and that the father would support those children. Now, New York has a gender neutral divorce statute and there’s no presumption that the mother gets custody. Fathers are on equal ground with mothers with regard to custody. Fathers are much more actively engaged in seeking custody of their children today then they have been in the past. Our office handles custody cases on behalf of mothers and fathers. Our office has handled cases in the courts on Long Island as well as in the City of New York dealing with issues involving custody, parenting time, orders of protection and other issues involving the children.

That being said, Schlissel admitted that, although fathers have the right to ask for custody, mothers still do obtain custody in the large majority of cases before the courts. He explained, “This is very often caused by the fact that children are raised in a traditional family where the father spends most of his time working and the mother is the nurturing parent who raises the children. However, fathers have an absolute equal right to have custody of their children and in many instances fathers litigate this issue before the courts in New York.”