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Understanding the New York State Custody Process



If you are seeking child custody in New York or you anticipate doing so in the near future, you should have at least a basic understanding of the New York state custody process.

A family law court will determine which parent receives child custody. In the end, the judges final order will be based on what he or she feels is in the best interest of the child or children. Because of this, judges scrutinize the facts of a custody case very closely before making their decision.

Filing a New York State Custody Case

Whether you decide to hire a lawyer to handle your custody case is your decision. A lawyer will be able to help you file your case with the correct court while advising you throughout the entire process.

If you decide to pursue the case on your own, talk to a clerk at your area family law court to obtain the proper documentation you need to file the child custody case.

Types of Custody

It is important to know your options before you head into the courtroom to argue for your parental rights. New York allows for several types of child custody.

The two overall categories of custody in New York are residential custody and legal custody. Residential custody merely refers to where the child lives. Legal custody refers to who has the authority to make major decision regarding the child. These decisions may pertain to the childs medical needs, education, or religion.

In New York, joint custody is also an option. This is when a judge awards both parents some degree of legal custody over the child. However, it does not determine residential custody, and, in fact, the parents may not necessarily have equal time with the child. The opposite of joint custody is sole custody. This is when only one parent has legal custody over a child.

Once your case begins, the judge may order what is called temporary custody. This is a custody order that lasts only for the duration of the case. Once the case is finalized, then the judge will make a new custody order that nullifies the temporary order.

Reviewing the Facts

To determine child custody, the judge will take into account a number of factors. The following is a list of only some of the factors the judge may consider. It is important to note that the court does not have to consider everything when making a decision.

  • Parents finances
  • Parents drug and alcohol usage
  • Parents age, physical health, and mental health
  • Histories of child abuse
  • Childs preference

Making an Order

Once the judge has reviewed the facts of the New York State custody case, he or she will then make a custody order. This order will lay out whether one parent will have sole custody of a child or children or whether the parents will have joint custody. The judge will also assign visitation rights for the parent who is not awarded custody.

There are several types of visitation a judge can award a parent. Supervised visits are overseen by a court-appointed person. Therapeutic supervised visits are supervised by a mental health professional. There are also unsupervised visits, where no supervision is necessary.

Changing an Order

Once the court issues a custody order, it is possible to have this order altered. To have such an order changed, a parent must prove to the court that there has been a change in circumstances. Changes to health or finances are examples of changes in circumstances a judge may consider. The judge will then make a determination of whether there is indeed a change in circumstances and whether it is in the best interest of the child to change the order.