WomensLaw.org strongly recommends that you get help from an organization in your area before proceeding with court action. Go to our NY Places that Help page for a listing of organizations and legal services in New York. In our general Custody page, we have information about custody that is not specific to any state. The page includes a section about how to try to transfer your custody case to a new state where you are living so that you can modify the custody order from your new state.
Basic info and definitions
What is custody?
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.1
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.2
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.3
For more information on custody in New York, you can read The Basics: Custody and Visitation in New York State prepared by an organization called Her Justice. (WomensLaw is not affiliated with this organization.)
What is visitation?
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 generally 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.”)
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.
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.
What options are there for legal custody?
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.1
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.1
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.2
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.
What options are there for physical custody?
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.
Should 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 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).
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 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 other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. 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.
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 what may be best in your situation, please go to NY Finding a Lawyer to seek out legal advice.
What are some pros and cons of getting a custody order?
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.1 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.”2 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.3 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 a manual prepared by an organization called Her Justice, which is called The Basics: Paternity Proceedings in NY.
Note: You do not have to have a custody order to file for child support.4
1 See NY Dom Rel § 240(1)(a)
2 NY Pub Health § 4135-b; NY Family Ct Act §§ 516-a; 542; 564
3 See LawNY.org
4 NY Family Ct Act § 516-a(a),(c)
What is mediation?
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.1 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.2 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.
1 See NY Courts website for more information about ADR in the family courts; see also NYC Family Court Custody/Visitation Mediation Program
2 See the NY Collaborative Family Law Center brochure
Who can get custody or visitation
Who can get custody?
At least one of the child’s parents has a right to custody, unless both parents are no longer living, or there is clear and convincing evidence that both parents are “unfit,” or other extraordinary circumstances exist. In order for a non-parent to get custody, s/he must show that one of the following is true:
- the parent has abandoned or surrendered the child;
- the parent has neglected the child;
- the parent is unfit; or
- there are extraordinary circumstances (reasons) why the non-parent should get custody and giving the non-parent custody is in the best interest of the child.1
In the case of a grandparent applying 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 the law as an “extraordinary circumstance.” However, this does not mean that a child has to live with a grandparent for this amount of time in order for the grandparent to apply for custody; it is just one specific example in the law.2
1 See Matter of Bennett v. Jeffreys; 40 N.Y.2d 543, 387 N.Y.S.2d 821 (Ct of Appeals 1976); see also “The Basics: Custody and Visitation in New York State”
2 NY Dom Rel Law § 72(2)(a),(b)
Can a parent who committed domestic violence/sexual assault get custody or visitation?
If a parent committed domestic violence:
It is possible that a parent who has committed domestic violence will get custody or visitation if the judge determines that it is in the “best interest of the child” to do so.
Judges 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.1 Courts will generally only deny visitation when there is substantial evidence that it would be harmful to your child.
New York state law requires that the judge consider the effects of domestic violence when making a custody determination. The domestic violence does not need to involve the child to be a factor. If you can prove in court that the other parent has committed domestic violence against you, the child, or any other family or household member, the judge must consider the effect of such domestic violence on the best interests of the child. 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. Furthermore, the judge must specifically explain how the domestic violence factored into his/her custody or visitation decision.1 However, since domestic violence is only one factor considered by the judge, it is possible that even an abusive parent will be given visitation or custody.
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 judge may award supervised visitation if the judge believes that it is in the best interest of your child. See Should I start a court case to ask for supervised visitation? for more information about the types of supervised visitation generally available.
If a parent committed murder or sexual assault:
If 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, that parent cannot get custody or visitation. If a parent has been convicted of 1st or 2nd degree rape, 1st degree course of sexual conduct against a child, predatory sexual assault, or predatory sexual assault against a child, the judge must assume that it is not in the child’s best interests for that parent to have custody or visitation but the parent can try to prove that the judge should change his/her mind. (Note: There can be exceptions made if the child or his/her legal guardian consents to the visitation/custody or if the person convicted of murder can prove that s/he was the victim of domestic violence and killed the batterer, etc.)2
1 NY Dom Rel § 240(1)(a); see also NYS Unified Court System website
2 NY Dom Rel § 240(1–c)(a),(b),(c)
I am the child’s grandparent, sibling or extended family member. Can I get custody or visitation of the child?
A non-parent such as a grandparent, sibling, aunt/uncle, step-parent, etc., generally cannot get custody of a child except for cases of abandonment, neglect, unfitness of both parents, or other extraordinary circumstances.1 See Who can get custody? for more information.
However, even if you cannot get custody, certain relatives (grandparents and siblings) may be able to get visitation. In order to get visitation as a grandparent, you must show that:
- visitation is in the best interest of the child; and
- either one or both of the child’s parents have died; or
- fairness requires that the judge intervene (get involved) and consider the matter of visitation.1
In order to get visitation as a sibling (or half-sibling), you must show that:
- fairness requires that the judge intervene (get involved) and consider the matter of visitation; and
- visitation is in the best interest of the child.2
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 may 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.2
1 NY Dom Rel Law § 72(a); NY Fam Ct Act § 651(b); Bennett v. Jeffereys, 387 N.Y.S.2d 821, 40 N.Y.2d 543 (Court of Appeals 1976); see also the NYS Unified Court System website
2 NY Dom Rel Law § 71
How the custody process works
Do 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 judge to appoint a lawyer for you. When you go to court, the judge should advise both you and the other parent that you each have a right to hire a lawyer to represent you and that if you cannot afford to hire a lawyer, you can ask the judge to assign a lawyer to represent you free of charge if the judge decides that your income qualifies.1 In order to qualify for a free court-appointed lawyer, your income must be below a certain amount, and the judge may ask you to produce paystubs, tax returns or other proof of your income. Do not be afraid to speak up and ask for a lawyer even if the judge does not ask you if you want one appointed. For more information on getting a lawyer appointed, go to What are the steps for filing for custody?
If you are unable to get a lawyer to help you and you plan to file for custody on your own, you may want to visit the NY Courts website, which provides links to paperwork you need to fill out and file with the court. Even if you plan on representing yourself, you should try to have a lawyer review your papers before you file them.
1 NY Fam Ct Act §262(a)(iii) & (v)
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
How 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 consider any factor that s/he thinks is important to make this decision.
According to New York law, when determining what is in the best interest of the child, proof of domestic violence is a factor that the judge must consider.1 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; and
- whether either parent has been abusive to the child.2
The NY Courts website discusses additional factors that may be considered by a judge.
1 NY Dom Rel Law § 240(1)(a)
2 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)
If I move out of the home and leave my children there with the abuser, can this affect my chances of gaining custody?
Depending on how long you wait to file custody after moving out, it may be possible that a judge may consider the fact that the other parent has been solely taking care of the children in your absence as a factor when making a custody decision. Before you leave an abusive relationship, you may want to get help to make a plan that will allow you to safely and legally take the children with you when you leave. If you want help doing this, you may want to talk to a lawyer who has experience with domestic violence and custody issues and/or a domestic violence advocate in your area. See our NY Places that Help page.
However, you may also be able to convince the judge to consider your reason for leaving the home. If you left your home to escape domestic violence, a judge has to consider the effect that domestic violence has upon the best interests of the child when making a custody determination.1 (However, if you argue that the other parent is abusive and should not be around the children, a judge may question why you’d leave your children with him/her.) It is possible that if the abuser got a temporary custody order based on your absence from the home, a judge may shift custody to the other parent during the eventual custody trial. Bear in mind, however, that court cases sometimes drag on for months, or even years, during which time you might not have your children living with you. It is generally best to have a lawyer representing you in any custody case, especially one where you may be trying to fight for your children to be switched from the abuser’s temporary custody to yours. Go to our NY Finding a Lawyer for legal referrals.
1 NY Dom Rel Law § 240(1)(a)
What are the steps for filing for custody?
The type of petition that you file and the court in which you file may depend on the specifics 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 services organization on our NY Finding a Lawyer page.
Generally in NY, if the parents are married and are seeking a divorce, one or both of the parents usually files for custody as part of the divorce action. Divorce actions must be filed in NY state supreme court and if you cannot afford an attorney, the judge 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).1
If the parents are already divorced, the parent who does not have custody may be able to file a petition to modify (change) the custody order if a substantial change of circumstances has happened since the order was issued. Depending on how the divorce decree (order) is written, you might have to go back to New York state 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. If you are filing for custody in family court and you cannot afford a lawyer, then the judge must appoint one for you if you earn below the income limit.2
For more general information about the New York state courts, please see the NYS Unified Court System Introductory Guide. Note: New York state has an Address Confidentiality Program (“ACP”), which helps a victim of domestic violence who registers with the program to keep his/her address confidential when filing court petitions. All mail is sent to the ACP and the ACP will send it to your actual (confidential) address. To register, click here.
1 See NY Judiciary Law § 35(8)
2 See NY Fam Ct Act § 262(a)(iii) & (v)
Can I change the state where the case is being heard?
Maybe. For information on trying to modify a final NY custody order in another state, or an out-of-state custody order in NY, please see our Changing a final custody order page in the general custody information section. This will tell you what factors a judge should consider when deciding whether or not to transfer your case to a new state.
The custody process is often complicated. Therefore, we recommend that you talk to a lawyer about any custody questions you have. To find legal services in NY, go to our NY Finding a Lawyer page. To find legal services in a state other than New York, go to Finding a Lawyer and select your state from the drop-down menu.
Can I get temporary custody in New York?
If you have recently arrived in New York state, and New York is not the home state of the child, a federal law called the UCCJEA allows for a person to file for temporary emergency custody in a state other than the home state if:
- the child is present in the state; and
- the child has been abandoned; or
- it is necessary in an emergency to protect the child because the child, a sibling or a parent of the child is subjected to or threatened with mistreatment or abuse.1
For more information, please see Can I get temporary emergency custody? in our general Parental Kidnapping section.
If the child’s home state is New York, and you are currently in the middle of a custody proceeding, often times temporary custody orders are issued while the case waits to be resolved through trial or a settlement where a final order will be issued. Note: The term temporary custody is typically used in family court whereas the term pendente lite custody is often used in supreme court (where divorces are handled). (Pendente lite is a Latin term that means “while the action is pending.”)
1 UCCJEA § 204(a)
In which state do I file for custody?
The general rule is that New York state courts have authority to hear a custody case if New York is considered your child’s “home state.”1 A child’s home state is the state where the child has most recently lived with a parent (or a person acting as a parent) for at least six consecutive months. In the case of a child less than six months old, the home state is the state where the child has lived from birth. A short, temporary absence from the state does not change anything.
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, either you or the other parent can start a custody action in the state in which your child most recently lived for at least six months.1 There is an exception to this rule – if you or the child or a sibling of the child is in danger of maltreatment or abuse, you may be able to file for temporary emergency custody in NY, even if you have been in NY for less than six months. See Can I get temporary custody in NY? for more information. This can be complicated. 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 Lawyer page.
Example: If a family has lived in Connecticut for one year and then one parent moved to New York with the children and filed in New York after living there for only four months, Connecticut is still the home state. New York would likely not have jurisdiction (power) over the custody of the children.
There are exceptions to the “home state rule.” For more information, please see What are the exceptions to the “home state rule”?
1 NY Dom Rel § 76(1)(a)
What are the exceptions to the "home state rule"?
In rare cases, you may file for custody in a state where the child and at least one parent have “significant connections” and substantial evidence regarding the child is available in that state. But as a general rule, you can only do this if there is no home state or if the home state has agreed to let another state have jurisdiction (hear the case).1 The custody process can be complicated. If you think this information applies to your situation, please talk to a lawyer in both states about this. To find legal services in NY, go to our NY Finding a Lawyer page. To find legal services in a state other than New York, go to Finding a Lawyer and select your state from the drop-down menu.
Another exception to the home state rule exists in the case of filing for temporary emergency custody in a state that a parent and child have recently arrived in. See Can I get temporary emergency custody? for more information.
1 NY Dom Rel § 76(1)
After a custody order is in place
If 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 petition to modify (change) the order at the courthouse that originally issued the order. Generally, for a judge to change your custody or visitation order, you need to show that there has been a substantial (significant) change in circumstances since the final order was made and that your proposed change would be in the best interest of your child.1
To begin the process of changing your custody order, you will need to fill out the forms for a “Petition for Modification of an Order of Custody/Visitation.” You can get the forms in the courthouse or you can file a custody or visitation modification petition online through the NY Courts website. We recommend getting a lawyer to represent you. Go to our NY Finding a Lawyer page for legal referrals. Even 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.
Note: Under New York state law, if a custody order was issued based on the fact that a parent was deployed by the military, the parent’s return from deployment automatically qualifies as a substantial change of circumstances. Upon the request of either parent, the judge must then decide whether it is in the child’s best interests to keep or change the custody order.2
1 See, for example, Grassi v. Grassi, 28 A.D.3d 482 (2nd Dept. 2006)
2 NY Fam Ct Act § 651(f); NY Dom Rel § 240(1)(a-2)
If there is a custody order in place, can I take my kids out of the state?
Generally, whether you can take your child out of the state for a short period of time may depend on many factors such as:
- what your custody order says about it (if anything);
- whether or not the custody case is still active/pending in the courts (which may mean that neither parent can remove the child from the jurisdiction of the court); and/or
- whether the trip will interfere in any way with the other parent’s visitation time, etc.
The custody order specifically may allow you to take your child out of the state (for a specific vacation, for example), may prohibit you from taking your child out of the state, or it may not address this issue at all. In some instances, the judge may require that you post a bond (money) or other security conditioned upon the return of the child to the state. If you are unsure whether leaving the state with your child temporarily is permitted, please talk to a lawyer who can advise you.
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 depending upon the specifics of your custody situation. WomensLaw.org strongly suggests getting legal advice from an attorney first, even if the other parent agrees that you and the children can move.
Things to ask an attorney:
- If the other parent agrees you can move, you may want to ask an attorney whether or not you still need to formalize this change through the courts (by filing for a modified order) or whether some type of notarized statement signed by both parents with the details of the changes may be sufficient.
- 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 to move as a request for a modification of the custody order. You should know that it could be difficult to get permission to move, especially if the other parent is active in the child’s life and strongly opposes the move.
In order to get permission to move from the judge, 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:
- 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; and/or
- how possible it is to preserve the relationship between the noncustodial parent and child through suitable visitation arrangements after the proposed move.1
For more information on modifying a custody order in general, please see the section entitled If a custody order is already in place, how can I get it changed?
1Tropea v. Tropea, 87 N.Y.2d 727 (Ct of App 1996)
Can a parent who does not have custody have access to the child’s records?
Maybe. Whether or not a noncustodial parent has access to his/her child’s school and medical records depends on what the custody order 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 this.
However, even if the noncustodial parent’s right to access records is limited by a court order, it could still be possible for him/her to access certain records under the Freedom of Information Law.1 If you are moving and want to keep your address confidential, you might want to talk to a domestic violence advocate before you move. S/he may be able to help you 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 NY Advocates and Shelters page.
1 For more information, see How to request records from OCFS under FOIL on the NYS Office of Children and Family Services website