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Legal Information: New York

Custody

Updated: 
May 8, 2020

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)