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