Know the Laws: New York
UPDATED February 13, 2011
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.
- General information
- Definitions
- Who can get custody or visitation
- How the custody process works
- 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. Note: If the father's paternity has not been legally established, then the mother is the only one with custody rights. Going to court is generally unnecessary since a mother's custody rights are automatically established upon giving birth; she does not need a judge to "give" her custody.
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.
back to topShould I start a court case to ask for supervised visitation?
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, you probably don't have much to lose by asking that the visits be supervised.
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.
In the great majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the father on a few visits or the visits might be supervised by a relative for a few months -- and if there are no obvious problems, the visits will likely become unsupervised. Oftentimes, the father ends up with more frequent and/ or longer visits than he had before you went into court. He may even end up with joint custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out if that is best in your situation, please go to Finding a Lawyer to seek out legal advice.