Sometimes in the course of a custody or visitation proceeding, a judge may choose to conduct a Lincoln hearing. Lincoln hearings occur when a judge chooses to hear the testimony of a child regarding custody or visitation preferences, and does so in a controlled environment; only the judge, a stenographer, the child, and the child’s attorney are present. The purpose of maintaining a controlled environment is twofold: first, it prevents a child from undue stress associated with open court testimony. Second, and closely related, it better allows for a child to relate parental preferences and family difficulties.

On April 2, 2014, the Appellate Division of the Supreme Court of New York decided the child custody case of Law v. Gray. In this case, the mother, Shalaine Gray, appealed the decision of the Family Court to grant, without a hearing, fully custody of the child Lawrence Jr. to the father Larry Law. The Appellate Court’s affirmation of the Family Court’s decision provides a good example of both what rules and standards are used by the Family Court and how they are applied.

The Supreme Court case of Troxel v. Granville, decided in 2000, has had an important influence on New York law surrounding grandparents’ rights (and the rights of non-parent relatives like aunts, uncles, and stepparents).

In Troxel, the Court struck down a Washington state law that gave visitation rights to non-parent relatives even when parents objected to non-parent relatives having contact with their children. The Court reasoned that Courts should presume that a “fit” parent acts in the best interest of his or her child. Indeed, parents have a constitutional right to rear their children as they see suitable, and inclusive of this right is the ability to refuse to associate with any particular party. Thus, any law that sought to override the “special weight” assigned to a parent’s decision was unconstitutional.

However, the Court did set a limit on parental rights. The deference afforded to a parent can be overcome by a compelling government interest supported by facts. Therein, in the event of government intervention into a family, it may be possible for grandparents or other non-parent relatives to gain visitation or custody rights.

If you and your spouse decide to separate, but not yet divorce, then it will be advantageous to create a separation agreement. A separation agreement, in the State of New York, is a detailed contract that establishes how issues of finance, division of assets, visitation and other marital circumstances will be treated while you and your spouse live apart yet are still legally married. The contact is enforceable by the courts in the event of non-compliance, and it will also provide the baseline for a divorce agreement should that situation arise.

After a divorce settlement has been reached, including details about child care and visitation, disputes may arise if a former spouse seeks to move for work or quality of life reasons. In all instances, a desire to relocate must first be approved by Family Court.

In determining whether or not to allow a parent to relocate, the Court primarily concerns itself with the well-being of the child.

The New York Court of Appeals, in Tropea v. Tropea, noted that each relocation request must be considered individually, taking into account all of the relevant facts and circumstances to decide what outcome is most likely to serve the best interests of the child. This made clear that while the rights of the parents are significant factors that must be considered, the child's rights and needs must be given the greatest weight.

The Court’s assessment of how relocation will affect the child takes into account questions like: strength of the relationship and attachment between the child and the non-custodial parent, ability for visitation to be maintained, impact on a child’s education and community ties, and potential effect on quality of life. If it is shown that a relocation will not adversely affect the child, a relocation request is more likely to be granted.