Legal Question in Family Law in New York
Visitation Rights of Parent filing for divorce
My friend has been separated from his wife for 9 mos. She lives in AR with their 2 year old son and he now lives in NY. She is filing for emergency temp. custody and has a Gag order against him. She won't allow him to see or talk to his son since they separated. She won't even speak to him, so they can reach an amicable visiting schedule. He still has not signed divorce papers but wants to be able to visit his son. What does he have to do to gain visitation? Does he have to wait for final divorce papers before asking for visitation? What can he do while waiting? Does he have to petition the court, if so, can he do so in his state? He's a resident of Florida but has recently relocated to NY. Please help he really wants to be able to see his son but his ex is so uncooperative. Thank you in advance for your help...
1 Answer from Attorneys
Re: Visitation Rights of Parent filing for divorce
Well.
Your friend is knee-deep in some of The Most complicated stuff.
Several general propositions: [1] The state within which the child has resided for the past 6 months is the state that *now* has jurisdiction. [2] If you friend truly does want to arrive at a point that includes visitation with his son, he is going to have to take steps to Actively Participate in some complex, drawn-out, no-fun-at-all litigation. Put otherwise, he'll have to move from being "knee-deep" to the status of furiously - no: Purposefully - swimming.
[3] Your friend will need to "settle down" long enough to be able to identify one state or another as HIS intended residence. It is, theoretically, possible for custody proceedings to be carried out in separate courts in distant states {personally, I've never seen this actually happen}. The point, however, is that somewhere along the line, your friend is going to have to make a "showing" that he's living someplace and 'available' to be 'investigated' with regard to his custody / visitation wishes.
[4] Your friend needs to talk to a lawyer. Even if he is a "recent" NY state resident, he can still try to access some legal advice by contacting the bar association in the county where he is staying and ask for that association's "Referral Program" - - through this program he should be able to connect with an experienced attorney who can begin the process of explaining just how complicated this can get ... & he can obtain that preliminary explanation at an absolute Minimum cost & without obligation.
Regards, etc.,
J. M. Hayes
>>--> The foregoing amounts to musings and observations based on some years familiarity with the 'day-to-day' operation of the law with regard to the issues involved In The Most General sense; my remarks should not be thought of as "legal advice and counsel" in the formal sense of that phrase, since there is, in fact, no 'attorney / client' relationship existing between us. <-<<