Know the Laws: New York
UPDATED September 25, 2012
WomensLaw.org strongly recommends that you get help from an organization in your area before proceeding with court action. Go to our NY Where to Find Help page for a listing of organizations and legal services in New York.
Custody is the legal responsibility for the care and control of your child (under 18 years old). When the judge issues a custody order, it will address two parts of custody: legal and physical.*
Legal custody is the right and responsibility to make major decisions about your child. Some types of decisions included in the right of legal custody are: where your child goes to school, whether or not your child gets surgery and what kind of religious training your child receives.**
Physical custody (also called residential custody) is the actual physical care and supervision of your child. It refers to who your child lives with on a day-to-day basis.***
For more information on custody in NY, you can read this brochure prepared by inMotion entitled, “The Basics: Custody and Visitation in New York State.” Please also see the Frequently Asked Questions section on the NYS Unified Court System website.
* NY Dom Rel § 75-a(3)
** See the NYS Unified Court System FAQs
*** NY Dom Rel § 75-a(14); see also the NYS Unified Court System FAQs
Visitation (also called "parenting time" in New York) refers to the time that non-custodial parents spend with their children. It means that even though the child lives with one parent, the child may still get to spend time with the other parent. A parent who does not have legal custody or physical custody will likely still be entitled to visitation.* Note: Even if there is an order of protection in effect that says the abuser/parent has to stay away from the child, there will often be an exception made so that the abuser/parent can see the child during court-scheduled visits. (For example, the order of protection may say “stay away from the child except for court-ordered visitation.”)
In some cases, parents can share legal custody of the child even if one parent has sole physical custody. This means that the child lives with one parent for the majority of the time and the other parent has visitation, but both parents have the right to make important decisions about the child no matter whose house the child is living in at the time the important decision needs to be made.
Generally speaking, a child’s parents may come to an agreement on a specific visitation schedule on their own. However, if the parents cannot agree, the judge can order specific time for each parent (unless there is a good reason for one parent not to have visitation). Visitation that is ordered by the court will take into consideration the best interests of the child, not just the desires or convenience of the parents.*
When deciding on a visitation schedule, a parent may get weekend parenting time, weekday parenting time, and/or a division of the holidays, school recesses, and summer vacation. A common visitation schedule could be that the non-custodial parent has time with the child every-other weekend, two weeks in the summer and on alternating holidays (for example, in even years, the mother has the child on Christmas Eve and the father has the child on Christmas Day and in odd years, the father has the child on Christmas Eve and the mother has the child on Christmas Day). However, each situation is different -- for advice on your particular custody/visitation case, please talk to a lawyer. Go to our NY Finding a Lawyer page for legal referrals.
* See Weiss v. Weiss, 52 N.Y.2d 170, 436 N.Y.S.2d 862, 418 N.E.2d 377; See also Matter of Denberg v. Denberg, 34 Misc.2d 980, 985–986, 229 N.Y.S.2d 831
A judge may give one parent sole legal custody. If you have sole legal custody of your child, you have the right to make major decisions about your child, while the other parent does not have that right.*
A judge may also give both parents joint legal custody. If you have joint legal custody with the other parent, then you and the other parent generally share the same rights and responsibilities to make decisions affecting your child’s life. This means that both you and the other parent have an input in decisions like where your child goes to school, what kind of religious training your child receives and whether your child needs surgery.*
Joint custody involves the parents communicating with each other and compromising on decisions about the child. Therefore, this is usually not a good solution for victims of domestic violence since the abuser usually has power and control over the victim and it might not be safe for the victim to disagree with the abuser. If the victim cannot have equal input and power in the relationship, the decisions about the child that are supposed to be made jointly are often made by the abuser alone. Sometimes, however, joint custody can be structured in such a way that each parent has total control over a specific area of the child's life. For instance, one parent has sole control over medical issues and the other parent has sole control over education issues and religious issues. This could be a better alternative for domestic violence victims who want to have joint custody.**
Note: It is strongly advised that you consult a lawyer to better understand and discuss all of the possible consequences of agreeing to joint custody before a joint custody agreement of any kind is made. You can find a lawyer under our NY Finding a Lawyer page.
* See the NYS Unified Court System FAQs
** See “The Basics: Custody and Visitation in New York State”
If you have sole physical custody of your child, then your child lives with you primarily (although the child may spend time in the other parent’s home during visitation). A parent with sole physical custody is sometimes called a child’s “primary caretaker,” or “custodial parent.” If you are the custodial parent, you have responsibility for the everyday care of your child when s/he is with you and the decisions that affect that care.
Sometimes a judge can order shared physical custody. If you have shared physical custody (also known as residential custody), your child will live with you and the other parent, with both parents having frequent contact with their child. The child may or may not spend equal amounts of time with each parent, depending on what the judge believes to be in the best interest of the child.
Getting a custody order can give you the right to make decisions about your child (legal custody) and the right to have your child live with you (physical custody).
However, there are many reasons you might choose not to get a custody order from a judge. You may not want to get the courts involved or you may have an informal agreement that works well for you. You may think going to court will provoke the other parent in some way. Also, once the judge is deciding custody, it is common for the judge to set up some type of visitation order for the other parent, which might discourage someone who doesn’t want the other parent to have a regular visitation schedule with their child(ren).
If you decide not to get a custody order, then both parents are considered to have equal rights to their child(ren) if the parents were married when the child was born or if paternity has been established.* For parents who were not married when the child was born, paternity can be established when the father signs an "acknowledgment of paternity" (usually this is done at the hospital when the child is born), or paternity can be established in court, resulting in the issuance of an “order of filiation.”** The only way to legally change the equal right to make decisions about your child when both parents equally have this right is for one parent to be granted custody of the child in court.*** You can find extensive information about paternity in NY, including what a father's legal rights are once paternity is established on the LawNY website. You can learn more about filing a paternity petition in court through inMotions' manual, "The Basics: Paternity Proceedings in NY."
Note: You do not have to have a custody order to file for child support.****
* See NY Dom Rel § 240(1)(a)
** NY Pub Health § 4135-b; NY Family Ct Act § 516-a; NY Family Ct Act § 542; NY Family Ct Act § 564
*** See LawNY.org
**** NY Family Ct Act § 516-a(a),(c)
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, for example, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation). In other situations, starting a case to ask for custody and supervised visits may be appropriate. However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
Even when supervised visits are ordered, the supervised visitation may be ordered for a short period of time and then changed to unsupervised visits if the supervised visits go well. In the majority of cases, supervised visits are only a temporary measure. Oftentimes, at the end of a case, the other parent ends up with more frequent and/or longer visits than s/he had before you went into court or even some form of custody. To find out what may be best in your situation, please go to NY Finding a Lawyer to seek out legal advice.
In NY, there are a few basic types of supervised visits and exchanges:
Mediation is a process that uses a neutral third-party, called a mediator, to help parents agree on matters relating to custody and visitation of their child without a trial. Sometimes a judge may refer parties to mediation, and sometimes the parties may request mediation voluntarily to avoid going to court. This process is also sometimes called “alternative dispute resolution” or ADR in the NY courts.* For a list of community dispute resolution centers, please see the NY Courts website. Generally, if the judge refers you to mediation, then no fees are charged.
Note: If you are the victim of domestic violence, make sure the judge knows this. Generally, mediation is not a good option in cases where there has been domestic violence because in mediation, you may be required to interact directly with the abuser and the dynamics of power and control that are present in domestic violence situations do not allow for an even mediation. If the judge finds that there has been domestic violence, then s/he cannot require you to go to mediation.
For divorce proceedings, NY has a Collaborative Family Law Center that gives divorcing couples a way to deal with issues that need to be resolved as part of the divorce with the help of lawyers, but without going to court.** This is similar to mediation, but is only available for couples going through divorce. For more information, please see this brochure. However, like typical mediation, this is not a good option for domestic violence victims.
* See NY Courts website for more information about ADR in the family courts; see also NYC Family Court Custody/Visitation Mediation Program
** See the NY Collaborative Family Law Center brochure