Know the Laws: New York
UPDATED January 12, 2009
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.
For additional information and for self-help resources, you can visit: www.lawhelp.org/ny/ or www.courts.state.ny.us/courthelp.
- General information
- Definitions
- Who can get custody or visitation
- How the custody process works
- How will a judge make a decision about custody?
- If I have moved away from the house where my children and their father currently live, will this hurt my chances of gaining custody?
- Do I need a lawyer?
- In which state do I file for custody?
- Are there exceptions to the "home state" rule?
- Can I change the state where the case is being heard?
- What are the steps for filing for custody?
- What is mediation?
- If a court denies a request for custody, do they have to explain why?
- After a custody order is in place
General information
back to topWhat is custody?
Custody is the legal responsibility for the care and control of your child (under 18). When the court issues a custody order, it will address these two parts of custody: legal and physical.
Legal custody is the right 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 your child gets surgery and what kind of religious training your child receives.
Physical custody is the actual physical possession and control of a child (under 18 years old). In other words, it covers who the child lives with on a day-to-day basis.back to topWhat are some advantages and disadvantages of getting a custody order?
There are many reasons some people choose not to get a custody order from a court. Some people decide not to get a custody order because they don’t want to get the courts involved. They may have an informal agreement that works well for them or may think going to court will provoke the other parent in some way. Also, once the court is deciding custody, it is usually common that the court also sets up some type of visitation order for the other parent, which might discourage some people who don't want the other parent to have a regular visitation schedule with the child(ren).
You should know that getting a custody order can give you:
- The right to make decisions about your child
- The right to physical custody of your child (to have your child live with you)
If you decide not to get a custody order, then you and the other parent have equal rights to both of these things if you were married or if paternity has been established. For parents who were not married when the child was born, paternity can be established either if the father signed an "acknowledgment of paternity" at the hospital (usually this is done when the child is born) or paternity can legally established through court in which may result in the issuance of an "order of filiation." The only way to legally change the equal right to make decisions about your child held by both parents is for one parent to be granted custody of the child in court.
To read more about paternity in NY State, check out this easy-to-understand manual prepared by inMotion and the Brooklyn Bar Association Volunteer Lawyers Project at www.inmotiononline.org/assets/pdfs/TheBasicsSeries_English/Paternity_Proceedings_in_NYS.pdf
Note: You do NOT have to have a custody order to file for child support.
Definitions
back to topWhat options are there for legal custody?
A judge may give you or the other parent sole legal custody. A parent with sole legal custody has the right to make major decisions about the child, while the other parent does not have that right.
A judge may also give you joint legal custody with the other parent if both parties agree to this. In this case, both you and the other parent would share the same rights and responsibilities to make decisions affecting your child’s life. This means that both parents 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 Finding a Lawyer page
back to topWhat options are there for physical custody?
In New York, if you have physical custody of your child, then your child lives with you, and not with the other parent. A parent with primary physical custody is sometimes called a child’s “primary caretaker,” or “custodial parent”. Generally, the custodial parent is the person who has responsibility for the everyday care of your child and the decisions that affect that care.
If a judge orders shared physical custody, your child will live with both you and the other parent, with both parents having frequent contact with the child. The child may or may not spend equal amounts of time with each parent.
When there is shared physical custody, both parents share the rights of making day-to-day decisions about your child and the responsibilities of caring for your child. Some things that parents with joint physical custody will both be responsible for during the time the child is with them include: feeding your child, bathing your child, taking your child to school or doctor's appointments, and putting your child to bed at night.
Here are some examples of shared physical custody:
- Your child spends weekdays with you, and weekends with the other parent
- Your child spends one month with you and then the month with the other parent
back to topIs there any difference between custody and visitation?
Yes. Visitation does not give a parent the same rights as custody does. Custody includes the right to make major life decisions about your child (legal custody) and the right to have your child live with you (physical custody).
A parent who does not have legal custody or physical custody will likely still be entitled to visitation. Even if there is an order of protection (restraining order) in effect that says the abuser has to stay away from the child, there will often be an exception made so that the abuser can see the child during court-scheduled visits. (For example, the restraining order may say "stay away from the child except for court-ordered visitation.")
It is also possible that parents can share legal custody of the child (but not physical custody) so 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.
Visitation means that even though the child lives with one parent, the child still gets to spend time with the other parent. A common visitation agreement could be that the non-custodial parent has visits 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).
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
How the custody process works
back to topHow will a judge make a decision about custody?
A judge will make a decision about custody based on what s/he thinks is in your child’s best interest. The judge will look at any factor that s/he thinks is important to make this decision.
According to the law, when determining what is in the best interest of the child, proof of domestic violence is a factor that the judge must consider.* Other things that the judge will probably look at include:
- Who has been the child’s primary caretaker
- The quality of each parent’s home environment
- How “fit” the judge thinks each parent is (taking into account any mental illness that the parent may suffer from)
- Which parent the child is living with now and how long that arrangement has been in place
- Each parent’s ability to provide emotional and intellectual support for your child
- Which parent your child wants to live with, if s/he is old enough to make an informed decision
- Whether your child would be separated from any siblings
- Whether either parent has been abusive to the child**
**See, for example, Storch v. Storch, 725 N.Y.S.2d 399 (3rd Dept 2001); Church v. Church, 656 N.Y.S.2d 416 (3rd Dept 1997)
back to topIf I have moved away from the house where my children and their father currently live, will this hurt my chances of gaining custody?
Perhaps. A judge will probably consider which parent has been taking care of the children since you moved out as an important factor when making a custody decision. Leaving the house where the children and their father currently live may cause the judge to favor leaving your children with the other parent. Before you leave the abusive relationship, you might want to think through a plan of how you can leave and take the children with you. If you need help in planning a way to leave wtih your children, you might find it helpful to talk to a domestic violence advocate in your town. See our page NY State and Local Programs
However, the judge will examine the reason for leaving the home during the custody proceeding. If you left your home to escape domestic violence, make sure the judge knows this. Also, tell the judge about any prior court orders, such as an Order of Protection. It is possible that the judge will grant temporary custody to the abusive parent during the proceedings, but then shift custody to the other parent for the final decision.* However, even if you might win "final custody" in the end of the court case, the court case could drag on for months or even years during which time you would not have your children living with you. Clearly, this could put a strain on your relationship with your children and could affect the final custody determination. Furthermore, if you plan to argue in the custody case that the father is violent and dangerous and that you should be granted custody yet you left the children with him when you escaped from the home, this could hurt your case. The judge might be less likely to believe your argument that the children are in danger with the father or if the judge believes that they are in danger, you might be faulted for leaving your children in a dangerous situation.
* See for example, Bruce BB. v. Debra CC., 761 N.Y.S.2d 733 (3rd Dept 2003)
back to topDo I need a lawyer?
It is highly recommended that you get a lawyer to make sure that your rights are protected. If you cannot afford a lawyer, you may be able to find sources of free or low-cost legal help on our NY Finding a Lawyer page or you can ask the court to appoint a lawyer for you if you fall below certain income limits. For more information on getting a lawyer appointed, go to What are the steps for filing for custody?
If you plan to file for custody on your own, you may want to visit www.nycourts.gov/courthelp/index.html, a NY courts website that provides links to paperwork you need to fill out and file with the court. Even if you plan on representing yourself, you should consider having a lawyer review your papers before you file them.
back to topIn which state do I file for custody?
Custody jurisdiction is state law. However, most states (if not all) have adopted either the Uniform Child Custody Jurisdiction Act (UCCJA), or the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). New York has adopted the UCCJEA, which we explain here.
Under the UCCJEA, you can only file for custody in the "home state" of the child. (There are exceptions to the "home state" rule -- see below.) The "home state" is the state where your child has lived with a parent or a person acting as a parent for at least six consecutive months. If your child is less than 6 months old, then your child’s home state is the state where s/he has lived since birth. (Leaving the state for a short period of time does not change your child’s home state).
If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least six months. Until then, you or the other parent can start a custody action in the state where your child has most recently lived for at least 6 months. There are some exceptions - please see the next section entitled Are there exceptions to the "home state" rule?
Here are some examples:
My children lived in Alabama their whole lives. We just moved to New York a few weeks ago. In my case, Alabama is my children's "home state". If I want to file for custody right now, I will probably need to file in Alabama.
My children lived in Alabama until we moved to New York 6 months ago. Because the children have lived in New York for 6 months, New York is their "home state." I will likely need to file for custody in New York.
My children lived in New York until they left to live with their father in Alabama 2 months ago. Because they haven't lived in Alabama for 6 months yet, their home state is still New York. If I want to file for custody, I can most likely file in New York.
back to topAre there exceptions to the "home state" rule?
Yes. There are exceptions to the "home state" rule.
In some cases, you can file for custody in a state where the children and at least one parent have "significant connections." Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state have jurisdiction. This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this.
For a list of legal resources, please see our NY Finding a Laywer page or visit the Where to Find Help page to choose another state.
You can also file for temporary emergency custody in a state other than the home state if:
1. the child is present in the state, AND
2. the child has been abandoned, OR
3. it is necessary in an emergency to protect the child because either the child, a sibling or a parent of the child is subjected to or threatened with mistreatment or abuse.
back to topCan I change the state where the case is being heard?
Maybe. If you move to another state, you may be able to change the state where the custody case is being heard. Once you and your child have been living in a new state for 6 consecutive months, then the new state may be able to hear your case. If you have been in the new state for less than 6 months, then you will probably have to ask the judge that is hearing the case to change the jurisdiction of your case. This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this.
To find legal resources in NY, go to our NY Finding a Lawyer page. To find legal resources in a state other than NY, select that state from the Where to Find Help tab on the top of this page and then click Finding a Lawyer.
back to topWhat are the steps for filing for custody?
It depends on the particulars of your situation. To find out what the process will be like for you, please consult a lawyer in your area. If you cannot afford one, you may be able to get help from a legal resource on our NY finding a lawyer page.
Generally, if the parents are married, and are seeking a divorce, one or both of the parents usually files for custody as part of a divorce action. Divorce actions must be filed in the supreme court and if you cannot afford an attorney, the court will provide an attorney for you to handle the custody and visitation portion of the divorce action. (You could also get an attorney appointed to handle an order of protection if you file for an order of protection during the divorce). Prior to 2006, there was no right to have counsel appointed in a divorce at all. However, a new law went into effect on August 16, 2006, which states that parties in supreme court have the same right to get a lawyer appointed as they would have had if the case were being heard in family court.*
If the parents are already divorced, the parent who does not have custody can ask for a change in custody in the county where the divorce was issued. Depending on how the divorce decree (order) is written, you might have to go back to the supreme court to file or you might be able to file in family court.
If the parents were never married or are married but have not started a divorce, either parent can file for custody in family court in the county in which the child has been living for at least six months. If you are filing for custody in family court and you cannot afford a lawyer, then the court must appoint one for you if you earn below the income limit.**
* See NY Judiciary Law § 35(8)
** See NY Fam Ct Act § 262
back to topWhat is mediation?
Mediation uses a neutral third-party, called a mediator, to help the parents agree on matters relating to custody and visitation of your child.
If you are the victim of domestic violence, make sure the judge knows this. If the judge finds that there has been domestic violence, then s/he cannot require you to go to mediation.
Generally, if the court refers you to mediation, then no fees are charged.*
* www.courts.state.ny.us/ip/adr/ProgramList.shtml
back to topIf a court denies a request for custody, do they have to explain why?
Yes, when a court makes a decision, it needs to make a “finding” giving you its decision and the reasons for it. The only exception to this is if you apply for custody and the other parent does not show up to court. This is called a “default” and the court can give you custody without making any findings.
After a custody order is in place
back to topCan I get financial support for my children and myself?
Yes. As long as paternity is established, you are entitled to receive support for your child. But the court makes separate decisions when awarding support for you and your children, so it is possible that you may only be able to get support for your children, and not for yourself.
You should also know that you can get support for your children and yourself after getting a custody order, but you don’t need a custody order to receive support for you or your children. When you file for child support in family court, you probably won't begin receiving the support for many weeks. However, when a final support order is issued, you will receive a retroactive payment dating back to the date that you filed your petition so the sooner you file, the more you will receive in the end.
NOTE: If you file for support, this may require that you establish paternity first. To read about the ways in which paternity is established, go to What are some advantages and disadvantages of getting a custody order? You should consult a domestic violence advocate and/or an attorney before doing this, because establishing paternity may give the other parent the right to visitation and/or custody of your child.
Support for your child: Generally, the court will determine how much money the other parent will pay to support your child. The court almost always uses set guidelines in a child support obligation worksheet to determine how much support you will receive. If you would like to see all of the factors that go into determining support, you can visit the NY State Child Support Website.
The guidelines the court uses involve a very complex formula, but basically the court looks at both parents’ incomes, your child’s needs and the custody arrangements. Generally, whether you are the custodial parent or whether you share joint custody with the other parent will affect the amount of support. To get a rough idea of how much support you may receive, you can visit AllLaw.com's NY child support calculator. However, this website only estimates the amount of support you may get. The amount of support you receive depends on how much the judge actually decides to give you.
To read more about child support in NY State, check out this easy-to-understand manual prepared by inMotion and the Brooklyn Bar Association Volunteer Lawyers Project at http://www.inmotiononline.org/assets/pdfs/TheBasicsSeries_English/Child_Support_in_NYS.pdf
Support for yourself: When you receive support while you are married, this is referred to as spousal support. Prior to starting a divorce, you can file for spousal support in family court. You can even file for it while you and your husband are still living together if he is failing to support you although this may be more difficult to prove.*
Once you are divorced, support is referred to as maintenance or alimony. If you are getting separated or divorced, the supreme court can award you temporary or permanent maintenance. In deciding whether to award you maintenance, a judge will look at many factors. A few of the things a judge will look at are:
- The income and property of you and your spouse
- How long you were married
- The age and health of you and your spouse
- How much both parents can earn for a living, and how much education you both have
- If you gave up any career opportunities for your spouse.**
If you were never married, you will not qualify for spousal support. If you are not getting divorced, you will not qualify for maintenance or alimony. To read more about spousal support and maintenance/alimony in NY State, check out this easy-to-understand manual prepared by inMotion and the Brooklyn Bar Association Volunteer Lawyers Project at www.inmotiononline.org/assets/pdfs/TheBasicsSeries_English/Getting_Spousal_Support_in_NYS.pdf
* NY Fam Ct Act § 412
** NY Dom Rel Law § 236
back to topIf a custody order is already in place, how can I get it changed?
To change a custody or visitation order that is already in place, you need to file a motion with the court. Generally, for the court to change your custody or visitation order, you need to show that there has been a substantial change in circumstances since the final order was made and that the new arrangement would be in the best interest of your child.
To begin the process, you can fill out the forms for a petition for “modification of custody” and return them to the court. You can visit your local courthouse to obtain copies of all the needed paper work, or you can visit our Download Court Forms page to find some of the paperwork that you will need to file. The court clerk may be able to answer some questions you have about the paper work. However, the court workers cannot tell you whether you should bring your case to court or what will happen if you do. If you do not have a lawyer representing you, you may still want to have a lawyer check over the papers before you file them.
back to topIf there is a custody order in place, can I take my kids out of the state?
It depends. Generally, whether you can take your child out of the state for a short period of time depends on what your custody order says. The custody order may allow you to take your child out of the state, prohibit you from taking the kids out of the state, or it may not address this issue at all. The judge may require that you post a bond or other security conditioned upon the return of the child to the state.
If you want to permanently move out of state (or move within the state to a distant location that would interfere with the father's visitation schedule), then you have to either get the permission of the other parent or of a judge. If the other parent agrees, you should make sure that the permission for you to move with the children is in writing and that both parents sign it in front of a notary. If you have to apply to the court for permission, the court will look at your request to move as a request for a modification of the custody order. It could be very difficult to get permission to move if the father is active in the child's life and the father strongly opposes the move.
In order to get permission to move, you must prove to the judge that moving will be in the best interest of your child. Generally, some factors that the judge will look at are:
(1) each parent's reasons for seeking or opposing the move,
(2) the quality of the relationships between the child and the parents,
(3) the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent,
(4) the degree to which the custodial parent's and child's life was enhanced economically, emotionally and educationally by the move, and
(5) the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.*
back to topCan a parent who does not have custody have access to the child’s records?
Maybe. Whether a noncustodial parent has access to the child’s school and medical records depends on what your custody agreement says. If you would like to limit the other parent’s access to your child’s records in order to keep your address confidential, it is important that you tell the judge.
However, even if the abuser's right to access records is limited by a court order, it could still be possible for the abuser to access certain records under the Freedom of Information Law. If you are moving to a confidential location, you might want to talk to a domestic violence advocate before you move to think through ways in which you can protect the confidentiality of your new address. To find a domestic violence advocate near you, check out the State and Local Programs link for NY.