If you need to consult with an attorney or would like more information on custody, please contact the Erie County Bar Association's Lawyer Referral Service.
Once parents separate, they must consider an appropriate custody arrangement for their children. There is no legal requirement that they immediately proceed to Court. However, if the parties can arrive at a mutually agreeable arrangement, that agreement can be entered as a custody court order without the need for a hearing. If the parties together cannot decide what is the best for their children, then the Court can hold a hearing and enter a custody order.
Custody is determined according to the best interest of a child. In making a custody award, the Court will consider, among other factors, which parent has been the primary caretaker of the child in the past and which parent is better able to provide a loving, stable environment for that child. If the Court finds that both parents are competent, loving parents, the Court may enter a shared equal custody award which means that both parents have rights in important decisions affecting the child, including what school the child attends and what religion the child follows. Generally, if all factors are equal, physical custody will provide equal time and equal overnight to the parents. Otherwise, one parent will be granted primary residential custody of the child and the other parent will be granted partial custody rights. Partial custody means that the non-custodial parent may take the child for extended periods away from the primary residence. Visitation means the contact with the child is only permitted under the supervision of the custodial parent.
A child does not have the right to decide with which parent he or she will live. However, the older the child is and the more mature his or her reasons for wanting to live with one parent or the other, the more weight the Court will give that child's request.
A parent is denied visitation rights only when visitation would jeopardize the child's welfare. The Court may restrict visitation to ensure the child's safety. For example, this may happen if one parent has a drug or alcohol problem which could impair that parent's ability to care for the child properly.
Once a custody order is entered, it may be enforced by law enforcement agencies within that jurisdiction. A custody order can always be modified by the Court or by agreement of the parties if a change in circumstances warrants such modification.
Without a court order, the police or the Court cannot order a parent to return the child from visitation or to prevent a parent from removing that child from the jurisdiction. For this reason, it is important for separated parents to obtain a Custody Order either by agreement or through a Custody hearing.
There are serious issues, and complicated procedures, where the custodial parent seeks to relocate to another state or another country. In many instances, there has to be a further court proceeding to determine what is in the best interest of the children with regard to any relocation. Assuming relocation is appropriate, then there must be a redetermination of the partial custody arrangement for the noncustodial parent. 2/19