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Legal Information: New York


November 9, 2020

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)