Legal Question in Family Law in New York
Rights when no custody has legally been ordered
My step-son lives with his mother. She and my husband went to court and had an order drawn up in which he would pay her child support a few years ago. Although he knew it was unlikely that he could get custody, (and therefore agreed that his son could live with the mother,) there is no order of custody filed. In this case, does that mean that he has no custodial rights? Can we pick him up for a visit like normal without getting in trouble, if she decides to disapprove? (She is not letting us talk to him because we filed a petition to lower our child support payments.) We get him for every holiday, but now she is not answering her phone and saying that we can't have him. We want to go pick him up for Christmas, but can she call the police and get us in trouble since he technically lives with her?
2 Answers from Attorneys
Re: Rights when no custody has legally been ordered
Your husband should file a Petition for visitation that specifies that the custodial mother MUST permit unfettered contact and visitation on a regular basis.
Good luck,
Phroska L. McAlister,ESQ
Re: Rights when no custody has legally been ordered
First, the police will not get involved if there is no court order of custody. There is custody, but without a specific court order, the police will not interfere in any way. That is their practice.
Your husband should look to a visitation order. This is not difficult to get and will solve the problem.
But consider looking to a 'joint custody'. The facts, as indicated thus far, are favorable.
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