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Legal Information: New York

Custody

Updated: 
May 8, 2020

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)