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The Basics of New York Custody Law



Whether you are currently in the middle of a New York custody dispute or anticipate one due to divorce or other circumstances, it is important to have some knowledge of New York custody laws.

In New York state child custody cases, the courts goal is to determine which parent will likely serve the child or childrens best interests. For a judge, this is not always the easiest decision to make, and it can involve an extensive review of case facts.

Types of New York Custody

There are multiple types of custody in New York. The following is a brief overview of the different types of custody a parent can be awarded.

  • Physical Custody: Sometimes referred to as residential custody, physical custody simply refers to where the child lives
  • Legal Custody: Legal custody is the type of custody most people think of when they hear the term child custody. This type of custody provides a parent authority to make major decisions regarding the child, including medical and educational decisions.
  • Joint Custody: Joint custody refers to where both parents share the legal custody of a child. It does not necessarily mean the child will spend equal time with both parents.
  • Temporary Custody: Sometimes referred to as pendente lite, temporary custody is the custody awarded to a parent or parents once a New York custody case is filed. Once the case is over, the judge will issue a new custody order that will nullify the temporary order.

Factors in Determining Custody

There is a very long list of factors that a judge will take into account before making a final decision regarding child custody in New York. The following is a list, though not a comprehensive one, of factors a New York family court may take into consideration.

  • Parents age
  • Alcohol and drug use of parents
  • Parents availability
  • Physical health of parents
  • Parents finances
  • Histories of child abuse
  • Home environment
  • Mental and emotional stability
  • Parents behavior in court
  • Childrens preferences
  • Religion, specifically whichever parent practices the religion that the child was brought up in

New York courts do not favor mothers over fathers in custody disputes. What matters most is what is best for the child as decided by a judge.

Child Visitation Rights

The courts will generally want to try to foster a relationship between the child and the parent who is not awarded custody. Usually the judge will award some form of visitation rights to the non-custodial parent. There may also be additional rules placed on the exchange of the child from one parent to another. In New York custody disputes, there are several types of visits and exchanges that a judge can order.

  • Unsupervised Visits: These are visits where the visiting parent is allowed time alone with the child. No third party needs to be present for such visits.
  • Supervised Visits: The parent cannot be alone with the child. Instead the court will choose someone to supervise the visits.
  • Therapeutic Supervised Visits: These are similar to supervised visits, but the person presiding over the visit is a mental health professional. The professionals goal is to improve the visiting parents parenting skills.
  • Neutral Place of Exchange: This is a visit where the exchange of the child takes place at a neutral location. Examples of neutral locations include a police station or a school.
  • Monitored Transition: This is when a non-parent is present during the exchange of the child from one parent to another. This is to help ensure the safety of the child.

Changing a Child Custody Order

If you want to change a New York custody order or visitation order, you will have to talk to a clerk in the court where the order was initially made. Tell the clerk you want to modify the order.

In such cases, the judge presiding over the matter will look at whether there has been a change in circumstances of one or both parents. The parent who wants to modify the order must prove to the judge that the changes would be in the best interest of the child.