Filing for Child Custody in New York: 5 Steps
Before you start a court case, consider all your options for deciding custody:
- You can settle with the other parent and have a judge sign an order with the terms of your agreement.
- For help reaching an agreement, you may try an alternative dispute resolution method, such as mediation, collaborative law or just negotiation.
- The remaining option is, of course, litigating in court.
In any of these situations, one parent will need to start a case.
It's a very good idea to have a lawyer do this for you because the process is complicated — if you don't need them to also represent you in court, they may charge you a low, flat fee.
If you choose to go without a lawyer, either parent can follow the steps below to open a case.
Step 1: Determine your court and type of case
First, determine if you'll file in family court or supreme court.
Parents seeking divorce file a case in supreme court. (They must meet the residency requirement.) These parents generally resolve custody as part of their divorce, but some file a custody case in family court before filing for divorce in supreme court.
Paternity cases, domestic violence cases and custody petitions go through family court (unless they're handled as part of a divorce).
In supreme court, cases are considered contested when parents disagree on one or more terms. In an uncontested case, parents agree on all terms.
Step 2: Complete your forms
Fill out all forms with black ink. If you're typing, use double-spacing. And if you're printing documents, make them single-sided. People representing themselves should list their own contact information instead of an attorney's.
If your case is in family court...
Complete General Form 17 to petition for custody or visitation.
Check the box beside:
- Article 4 if you're asking for child support
- Article 5 if you're asking the court to name a legal biological father
- Article 6 if you're asking for custody or visitation
This tells the court which article of the Family Court Act applies to your case.
Note that the petitioner is the person filing and the respondent is the other parent (or whomever the petition is against).
You may attach a proposed or agreed-on parenting plan now or submit one later.
If necessary, you can also complete a Family Offense Petition to request a temporary protection order. Attach photos or other evidence.
If disclosing your address or other identifying information would pose a risk to you or your child, complete an Address Confidentiality Affidavit.
If your case is in supreme court...
When parents don't agree on the terms of their divorce, New York doesn't make it easy for them to open a case without a lawyer. You may use the following documents and ask your court if it requires others — but things will be much easier if you use a lawyer.
- Complete an Application for Index Number.
- Complete a Summons with Notice (or a Summons and a Verified Complaint).
- Attach to either summons a Notice of Automatic Orders, Notice of Guideline Maintenance and Notice Concerning Continuation of Health Care Coverage.
If you've already agreed on all divorce terms, your paperwork depends on your location:
- In counties that let spouses file for uncontested divorce together, use joint divorce paperwork. It doesn't matter which spouse you list as plaintiff and which as defendant.
- Elsewhere in New York, use the uncontested divorce paperwork.
Any time you reach agreement, turn in the stipulation of settlement that you've agreed on, which will include a parenting plan.
In all divorces, the person filing is the plaintiff and their spouse is the defendant.
Leave any spaces labeled index number blank for now.
If you can't afford filing fees, fill out a fee waiver application along with a Notice of Motion, and attach a sworn affidavit explaining your finances. Contact your court to find out what specifically should go in your affidavit and what proof of income, if any, is necessary.
Step 3: Finalize your paperwork
Make two additional copies of all your paperwork. Then take your documents to a notary. They should notarize any affidavits, forms with a notarization section, and your stipulation of settlement (if you're starting an uncontested divorce).
Step 4: Turn in your paperwork
Many courts allow electronic filing. If yours does, you can e-file your forms to start your case.
If your case is in family court...
There are no filing fees in family court.
Unless you're filing online, take your documents to the family court clerk. They'll stamp the papers with a file number for your case, then keep one copy and return the others to you.
If your case is in supreme court...
You'll have to pay $210 to file your index number application. There's an additional $35 fee if you're opening an uncontested case. Contested cases will have more filing fees throughout the court process.
Unless you're filing online, take your documents to the county clerk. The clerk will stamp them with your index number, keep one copy and return the others to you.
Step 5: Serve the other parent
Service is the process of formally notifying the other parent that you've opened a case. The server delivers copies of the papers you've filed to the defendant or respondent. If you filed your case online, they should also deliver a Notice of E-Filing.
Unless the judge gives you permission, you cannot serve the other parent yourself. Instead, you can ask a nonrelative, or you can hire the local sheriff or a process server. Whomever you choose, they must be a New York resident who is at least 18.
Be sure to follow the many rules for service and have the server file a notarized affidavit with the court afterward.
If your case is in family court...
Service must occur at least eight days before the other parent needs to be in court.
Ask your court if it has any special requirements. For example, some counties require a sheriff to serve.
This is the last step in your filing. You and the respondent will both receive a summons in the mail stating when and where to report for your next appearance.
If your case is in supreme court...
You can skip service if you've filed for a joint divorce together.
Otherwise, the defendant must be served dated copies of either the Summons with Notice or both the Summons and the Verified Complaint within 120 days of the initial filing.
Information for respondents and defendants
Respondents (family court)
If you receive a custody petition, you should file an answer or a cross-petition. If you don't, any allegations in the original petition can be deemed admitted.
An answer responds to allegations the other parent made and states any counterclaims you have for custody. A cross-petition is similar but ensures the other parent can't withdraw the case.
File either document with the family court listed on your paperwork. You must serve the paperwork to the other parent, and the server must complete and file the appropriate affidavit.
Defendants (supreme court)
When you're served divorce papers, you have 20 days to respond — or 30 days if served outside of New York or not in person. (However, if you have a full agreement with the other parent, you don't need to respond because you'll submit uncontested divorce papers together instead.)
If you were served a Verified Complaint, respond by filing an answer and a Notice of Appearance and Demand.
If you were instead served a Summons with Notice, just file a Notice of Appearance and Demand. You'll file an answer after your spouse serves you a Verified Complaint.
You can hire a lawyer to write your answer or use the Rural Law Center's answer template.
File your forms with the county clerk at the courthouse and serve your spouse. The server should fill out the relevant affidavit showing that service took place, sign it in front of a notary, and file it with the county clerk.
Additional help with your filing
If you can't afford an attorney, the court may assign you a free one to represent you in custody issues.
You can also contact a legal clinic to ensure your paperwork is completed correctly. Legal clinics can be found through law schools or the legal aid society in your area.
Preparing for what comes next
Once you file all your paperwork, your case will be slotted for review.
If you filed a full agreement, a judge will sign your final orders to close your case, as long as they consider it to be in your child's best interest.
If you haven't reached agreement with the other parent, you'll prepare for an appearance or conference. Take advantage of technology to be ready.
The Custody X Change online app offers custom custody calendars, parent-to-parent messaging, an expense tracker and more.
You can use the app in many ways in New York: to put together proposals for the other parent, prepare settlement paperwork or organize evidence.
Be prepared for every step of your case with Custody X Change.