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Legal Information: New York


November 9, 2020

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)

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.

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 GuideNote: 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)

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)

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.

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)

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 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)