Under New York custody law, the general rule is that a parent not awarded custody of a child has visitation rights with respect to the child. However, a noncustodial parent's visitation rights are not absolute. Specifically, visitation can be restricted or even denied if the court finds that allowing regular visitation might endanger the child's physical, emotional or moral health. Where circumstances are not so extreme as to justify blanket denial of visitation, but there is reason to fear for the child's welfare in the presence of the noncustodial parent, the court may implement a supervised visitation arrangement.
Definition of Supervised Visitation Under New York Law
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Generally, supervised visitation in New York is defined as contact between a noncustodial parent and his child in presence of a third party who observes and monitors the visit and ensures the child's well-being. The appropriate form of the supervised visitation ordered by the court will depend on the circumstances of the particular case and the relative danger to the child, the custodial parent and the supervisor when in the presence of the visiting parent. In some contexts, for example, it will be sufficient for visits to be voluntarily supervised by court-approved friends and family in their homes; in other contexts, such as domestic violence cases, the court's optimal choice will be continual supervision in a public place or agency setting by a neutral, professional third party with the capacity to enforce legal safety measures if necessary. 1).
Reasons for Requiring Supervised Visitation
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Under New York law, a parent cannot be subjected to supervised visitation absent a finding that the child is adversely affected by regular visitation and that restriction of the parent's visitation rights---specifically via supervision---would be in the child's best interests.
The most common supervised visitation situations in New York involve noncustodial parents with histories of domestic violence, particularly toward the custodial parent. Domestic violence offenders often use informal visitation arrangements as opportunities to continue to threaten and harass their ex-partners, notwithstanding protective orders; moreover, there is an increased likelihood such parents may abuse or attempt to abduct the common child during visitation. Accordingly, when family violence persists in this manner, New York courts often find it necessary to require strictly supervised visitation between abusive parents and their children.
Additional factors and attendant circumstances New York courts may consider as justification for supervised visitation include:
Parent's mental illness: only if there is potential for harm to the child due to the parent's condition if visits are unsupervised;
Parent's substance abuse: only if the parent's alcoholism causes him to act in a manner that could be injurious to the child; or
Sexual behavior: only upon a showing that the parent may, if left unsupervised, engage in behavior with a romantic partner in front of the child that would adversely affect the child.
Procedure for Imposing Supervised Visitation
New York courts may only issue supervised visitation orders following a formal judicial hearing complying with state due process requirements. The custodial parent or other appropriate guardian must file a motion with the court for supervised visitation and present evidence supporting her claims, and the noncustodial parent must be given notice and an opportunity to be heard in court. If the court determines supervised visitation is required, it will issue a binding and enforceable supervision order tailored to the case to best ensure the safety and comfort of the child and custodial parent.