Know the Laws: New York
UPDATED January 12, 2009
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- General information
- Definitions
- Who can get custody or visitation
- How the custody process works
- After a custody order is in place
Who can get custody or visitation
back to topWho can get custody?
At least one of the child's parents is entitled to custody, unless there is clear and compelling evidence that both parents are “unfit.” If the parents are no longer living or are considered “unfit”, the judge can award custody to another person or to an agency such as Child Protective Services (which can also be known by other names such as Administration for Children's Services), depending on what the judge believes to be in the best interest of the child.
back to topCan a parent who committed violence get custody or visitation?
Maybe. It is possible that a parent who has committed violence will get custody or visitation if the court determines that it is in the "best interest of the child" to do so.
Courts generally presume that it is in the child’s best interest to see both parents regularly, so they favor providing both parents with some form of custody or visitation. Courts will only deny visitation when there is substantial evidence that it would be harmful to your child.
The judge has to consider impact of domestic violence on your child when deciding who should get custody and if there should be visitation. However, it is possible that even a parent who has physically abused your child will be given visitation. If the other parent has abused your child or if you believe that your child is not safe with the other parent for another reason, you can request that the visitation be supervised. The court may award supervised visitation if the judge believes that it is in the best interest of your child.
In general, there are two types of supervised visits that could possibly be ordered. Supervised visits may be ordered at an agency where a social worker or other trained professional sits in on the visit to observe the interaction between the parent and child and submits a report to the court. It is possible that at least one of the parents may be required to pay for this service. Another option is that a family member or close friend acts as the supervisor. The type of supervised visits that are ordered depends greatly on the resources available in your county and the circumstances of the case. However, even when supervised visits are ordered, often times the supervised visitation is only ordered for a short period of time and it is then changed to unsupervised visits if the supervised visits go well.
back to topI am the child’s relative (other than a parent). Can I get custody or visitation of the child?
Except in certain situations, you generally cannot get custody of the child, but you may be able to get visitation.
Generally, one or both parents are entitled to custody. It is only when both parents are dead or “unfit” or when "extraordinary circumstances" exist that the court will give custody to somebody other than a parent. The court will try to decide what is in the best interest of the child to determine who should get custody.
If you are the child’s grandparent or sibling (including half-sibling), then you may be able to get visitation.
In order to get visitation as a grandparent, you must show that:
- either one or both of the child’s parents have died OR
- fairness requires that the court give visitation
- AND
- visitation is in the best interest of the child.*
However, the court tries not to interfere with a parent's wishes on how to raise his child and so the court will rely heavily on the wishes of the parent if the parent is considered to be "fit" by the court.
In order to get visitation as a sibling (or half-sibling), you must show that:
- fairness requires that the court give visitation AND
- visitation is in the best interest of the child.**
A sibling (or half-sibling) can apply for visitation when s/he is separated from the sibling and contact between them is somehow being limited. This can happen when the parents are divorced or dead and the children are being raised by separate families who won't permit visitation. This may also happen when an older adult sibling who resides out of the home is being denied access to younger siblings who still live in the family home, or where siblings or half siblings have been placed in foster care and are separated or have been adopted into separate families.**
* See NY Rel Dom Law § 72
**See NY Dom Rel Law § 71