If you’re facing a child custody action in New York, here’s what you need to know before starting the process.
- What are the Types of Child Custody in New York?
- How is a Custody Determination Made in New York?
- What is ‘The Best Interests of the Child’ Standard?
- What is a Parenting Plan?
- Modifying Custody or Visitation Orders in New York
- New York Child Custody FAQs
What are the Types of Child Custody in New York?
New York recognizes two types of child custody:
- Physical custody or residency provides for where the child lives. This parent is responsible for the day-to-day care of the child. Joint physical custody is an option, meaning both parents are considered custodial parents of the child. In this scenario, the child spends significant amounts of time with both parents, as determined by the courts.
- Legal custody provides decision-making power over education, healthcare, religious upbringing, and more. In most cases, family court adjudicators view joint legal custody as being in the best interest of the child.
Courts in New York courts use the phrases physical custody or primary placement to describe where the child lives primarily. Courts use the words visitation or secondary placement to describe the parenting time for the other parent.
There are two types of legal custody:
- Sole legal custody means that one parent has the authority to make decisions about the child. The non-custodial parent may have the right to receive medical or education information, but they do not make the decisions.
- Joint legal custody means that two parents or other caregivers share authority to make decisions about the child. Joint legal custody requires the parents to communicate well enough to keep each other informed of the child’s needs and make decisions together.
Courts in New York courts use the terms physical custody or primary placement to describe where the child lives primarily. Courts use the words visitation or secondary placement to describe the parenting time for the other parent.
At least one of the child’s parents has a right to custody unless both parents are deceased, there is convincing evidence that both parents are unfit, or other extraordinary circumstances exist.
For a non-parent to get custody, they must show one of the following is true:
- The parent has abandoned or surrendered the child
- The parent has neglected the child
- The parent is unfit
- There are extraordinary circumstances why the non-parent should get custody, and giving the non-parent custody is in the child’s best interest.
When a grandparent applies for custody, if the child was voluntarily given to the grandparent by the parent and the child has lived with the grandparent for 24 months continuously, this is recognized by New York law as an “extraordinary circumstance.” However, this does not mean that a child has to live with a grandparent for this amount of time for the grandparent to apply for custody. It is just one of many possible scenarios.
While divorce proceedings are pending, New York courts usually award temporary custody to one or both parents. After the divorce is final, the courts will create an order reflecting one of the above types of custody, replacing the temporary custody order.
How is a Child Custody Determination Made in New York?
The first step in deciding custody is whether a New York court has jurisdictional authority to hear the case. A court has authority if:
- the child is less than six months old and lived in New York their entire life
- the child has lived in New York for the past six months, and no other State has made an order yet
- New York issued the last custody order for that child
- the child is in New York after an emergency in their home state.
All custody decisions are based on the best interest standard of the child. Judges must weigh several factors (see below) to reach an appropriate custody decision.
A case starts with one parent petitioning the court for child custody. A hearing date is set, and both sides may present evidence to support their positions at that time. Alternatively, some parents choose mediation and need to only submit a well-crafted parenting plan to the courts for approval.
Courts may order supervised visitation but will generally only deny it when there is substantial evidence that it would harm a child, such as when domestic violence is present. The judge is not supposed to place a child in the custody of a parent who presents a “substantial risk of harm” to that child.
Also, suppose a parent has been convicted of 1st or 2nd-degree murder of a parent, legal custodian, legal guardian, sibling, half-sibling, or step-sibling of any child who is the subject of the custody case. In that case, that parent cannot get custody or visitation.
What is a Guardian ad Litem/Custody Evaluator?
A guardian ad litem or custody evaluator is often a court-appointed attorney who advocates for the child’s best interests. This person does not advocate for either parent.
There is no requirement in New York that you must use a guardian ad litem or custody evaluator, but they are routinely used in cases where there is a high level of conflict between the parents.
What is “The Best Interests of the Child” Standard?
When deciding custody in New York, the child’s best interests are the most crucial factor a family court must consider regarding which parent gets physical custody.
Specific factors constitute the child’s best interests, and a court must consider these when deciding a custody case. They include:
- How long the child has been residing with either parent
- Where the child has been primarily residing
- Whether the child has any special needs that one parent is better equipped to handle
- Whether domestic violence is an issue in the family
- Whether there are any siblings, as courts like to keep siblings together in most instances
- Whether one parent is better equipped to handle the intellectual and emotional development of the child
- Whether one parent will foster a good relationship with the other parent
- Whether parental alienation—where one parent is turning the child against the other parent—is involved
- If an older child has a preference about where to live, which will not be determinative of a custody arrangement but is something a court may take into consideration
- Whether one parent has better parenting skills
- Whether either party is an abusive parent who has issues with alcohol or drugs
- Which parent can better provide food, shelter, medical attention, and education for the child
- The home environment of each parent
- If there exists a strong bond between the child and the parent
- Whether there is a formal custody agreement already in place or an informal custody arrangement
- The parents’ work schedules
- Whether a parent will be able to promote the child’s religious beliefs and religious upbringing
- The absence of domestic partners in each parent’s household
- The mental and physical health and stability of each parent
Can parents mediate child custody issues?
Mediation is a process that uses a neutral third party to help parents agree on custody and visitation without a trial. Mediation is sometimes called “alternative dispute resolution” or ADR in the New York courts.
In some cases, a judge may refer parties to mediation. Most of the time, no fees are charged if the judge refers you to mediation. Other times, parents may request mediation voluntarily to avoid going to court.
New York has a Collaborative Family Law Center that allows divorcing couples to deal with issues that need to be resolved as part of the divorce with the help of lawyers but without going to court. It is similar to mediation but is only available for couples going through a divorce.
Read More: A Guide to Uncontested Divorce in New York
What is a Parenting Plan?
New York requires a parenting plan if you mediate or settle your case with the other parent.
A plan is not required if you choose to go to trial. Judges will develop the plan based on the best interests of the child. The judge will set the terms typically covered in a parenting plan for you.
If you try to develop a parenting plan on your own, the goal should be to make it as detailed and comprehensive as possible. It should address:
- Transportation issues
- Visitation schedules
- Holiday, vacation, and other non-routine and visitation
- Phone, email, and text parameters
- Information sharing
- Relocation clause
- New partners
- And any significant decisions in a child’s life where both parents should be involved.
Modifying Custody or Visitation Orders in New York
New York custody orders can be modified anytime until a child turns 18 or becomes emancipated or the custody order is changed.
Either parent can file a Petition for Modification of an Order of Custody/Visitation which are often initiated due to a substantial change in circumstances, possibly due to a distant job relocation, illness, change in finances, or other similar events. Even with potential modified order, the overriding standard is the child’s best interests.
You can get the forms in a county courthouse or file a custody or visitation modification petition online.
A judge may schedule a court hearing to review evidence justifying the custody modification. Based on this evidence, the modification will be approved or denied, or the judge may create a new modified order with the most appropriate guidelines.
New York Child Custody FAQs
Can a parent refuse to allow visitation if child support is not paid?
No. Visitation and support are two separate issues. A judge will not be happy to hear visitation is being denied because child support is not paid, particularly if a custody order is already outlined in the visitation schedule.
Does New York favor mothers over fathers in custody cases?
By law, New York courts cannot favor one parent over another based on gender.
Can a custodial parent move to another part of New York or out of state with a child?
It’s possible, but you must follow specific procedures or risk violating a child custody court order.
If you want to permanently move out of state or move within the same state to a distant location that would interfere with the other parent’s visitation schedule, or change the child’s school, for example, then you may have to get permission from the other parent or the judge.
Some custody orders waive this right requiring no prior permission, but this is usually the exception rather than the rule.
If the other parent agrees you can move, you may want to retain an attorney to help formalize this change through the courts through a modified order. Another option may be to create a notarized statement signed by both parents with the details of the changes.
You should know that it could be challenging to get permission to move, especially if the other parent is active in the child’s life and strongly opposes the move.
If the other parent does not agree to the move and you have to ask a judge for permission, the judge will likely view your request as a modification of the original custody order. This means you will need to prove to the judge that moving will be in your child’s best interest.
In response, judges will consider:
- each parent’s reasons for wanting or opposing the move
- the quality of the relationships between the child and each of the parents
- the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent
- the degree to which the custodial parent’s and child’s life would be economically, emotionally, and educationally benefitted by the move
- how possible it is to preserve the relationship between the noncustodial parent and child through suitable visitation arrangements after the proposed move
What is the Parental Kidnapping Prevention Act?
This federal act works with the Uniform Child Custody Jurisdiction Act (UCCJA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
The UCCJA & UCCJEA were enacted to establish uniformity across all 50 states regarding child custody orders. This was so a parent could not take a child to another state and get a more favorable custody order.
The Act ensures a custody order from the first state will be given full force in all other states. The Parental Kidnapping Prevention Act bolsters the first state’s custody order. It designates that law enforcement can be contacted to assist in returning the child to the other parent when one parent refuses to return the child.
How does shared custody impact child support in New York?
Under New York’s Child Supports Standards Act, a non-custodial parent must pay child support to the custodial parent based on the formula set up by the State. Custody does not directly impact the amount, but specific allowances may be made when looking at the child support amount, the alimony requested, and other factors.
Does a child have a say in custody matters?
To some degree, yes.
Courts will consider a child’s wishes, but much of that has to do with age, maturity, and other influences on the child. For example, a judge will give more credence to the desires of a 12-year-old child than the wishes of an 8-year-old.
Judges are under no obligation to consider the child’s desires, no matter the age.
A court must consider the “totality of the circumstances” when making a final custody decision.