Family law proceedings that involve issues of custody and visitation often generate the most acrimonious disputes.
[5] Where there are children of the marriage residing in New York State and under the age of 18, a demand for custody is mandatory in divorce actions.
Custody may not be awarded to a person other than the father or mother, except under unusual circumstances that require a hearing.
The law, N.J.S.A 2A:34-12.3[7], enacted in 1999, was established to promote cooperation between the parties and to assist in resolving issues that arrive during the divorce process that may impact a child.
In In re O'Donnell-Lamont (2004), the Oregon Supreme Court affirmed an Oregon statute requiring a presumption the parent acts in the child's best interests to be met prior to applying the best interests of the child standard, placing both parties on equal footing.
The court noted that the issue in itself allowed for an intervenor with a legitimate purpose to come forth, and through the statute's requirement of first showing the relationship, second showing the rebuttal of the presumption, and finally judging the choice on the best interest of the child standard, the fundamental right of the parent was being given proper Due Process Requirements under the 14th Amendment Due Process Clause.