New York Child Custody & Visitation: Laws & More

In New York, divorcing or separating parents can work together — with or without legal professionals — to draft a parenting plan and have it approved by the court (called settling). If parents can't agree on a plan, the court makes child custody decisions based on evidence.

Keep in mind that every case is different and practices in your county may vary slightly.

Types of custody

A custody order states who is legally and physically responsible for a child.

Legal custody

Legal custody is the right to make decisions for a child about issues like medical care, education and religious upbringing.

Sole legal custody means one parent has the right to make these decisions, while joint legal custody gives both parents the right to do so.

In sole legal custody, the noncustodial parent can still make minor and emergency decisions for the child, such as how to treat an injury. Otherwise, the custodial parent has the final say in decision-making.

Joint legal custody gives both parents decision-making rights. Your parenting plan will specify if one parent has purview over certain decisions (e.g. education) or if the two must agree. The plan may require parents to consult a third-party like a parenting coordinator to resolve disagreements.

It's unusual for a judge in New York to order joint legal custody without the parents' consent. Parents need to get along reasonably well to make decisions together.

Physical custody

Physical custody, also known as primary placement, refers to whom the child lives with and who is responsible for the child's supervision.

Sole physical custody gives this to one parent. The child then spends substantially less time (or, in extraordinary circumstances, no time) with the other parent. Joint physical custody gives significant time to each parent.

How to begin your case

The first step in the custody process, whether you plan to go to trial or settle, is to open a case.

New York has two courts that can make custody and visitation judgments: supreme court and family court.

If you're getting a divorce or legal separation, file in supreme court. Otherwise, file your child custody petition, paternity case or domestic violence case in family court.

Factors in custody decisions

Regardless of which court hears your custody case, the judge will rule based on the best interest of the child involved.

The parent (or parents) who demonstrates they can best care for the child will be awarded custody regardless of race, religion, sexual orientation or gender.

Factors the judge considers include each parent's:

• Bond with the child
• Time spent with the child
• Mental and physical health
• Parenting skills
• Work schedule
• Ability to provide food and shelter and meet other needs
• History of crime, violence or substance abuse

Courts prefer that children maintain relationships with both parents. If one parent gets sole custody, the other will receive visitation rights unless this would jeopardize the child's well-being.

Length of custody proceedings

The length of the custody court process varies greatly. One reason is that parents can file a settlement at any time to end proceedings. Other factors that can have an impact include the judge's schedule, whether an evaluation is necessary and which court hears your case.

Cases in supreme court often take at least several months to resolve, due largely to the noncustody issues that must be decided in a divorce or separation. Usually, custody and visitation must be resolved before other issues can be brought to trial.

Custody cases in family court often resolve within a few months. Parents may be able to have their case heard by a court attorney referee to speed the process up.

Costs to expect

The cost of a child custody case depends on its length, the court, where you live in New York and whether you hire an attorney, among other factors.

Going to trial is expensive. A "simple" custody trial can cost you $5,000 or more in attorney's fees. A difficult trial can reach tens of thousands.

In addition, your case may require a forensic evaluation before trial that can cost several thousand dollars.

Your case will cost less if you enter an agreement and avoid trial.

Attorneys may charge anywhere from $75 to $1,000 per hour based on their location, schooling and experience. A retainer fee (like a down payment) is due up front.

Parents who can't afford an attorney may be appointed one for free. You may have to present pay stubs, tax returns or other forms of income verification.

Though not recommended, you can also opt to represent yourself (details below) to avoid attorney fees. Or you can hire an attorney to help with limited aspects of your case.

Alternative dispute resolution methods are more cost effective than litigation. Some counties in New York offer free mediation (and most participants don't hire an attorney). Collaborative lawyers generally cost less than an attorney taking your case to court.

If you litigate abusively (e.g., make false claims or open a case just to harass the other parent), you can be ordered to pay the other party's attorney fees in addition to your own.

Representing yourself

Representing yourself (known as pro se representation) is very uncommon in supreme court due to the complexity of the forms and rules involved. Dividing finances and property can require intricate knowledge. Experts strongly advise divorcing parents to hire an attorney.

It is feasible to represent yourself in supreme court if you and your spouse agree on all matters (custody, finances, etc.). This is called an uncontested divorce, and typically the parties don't appear before a judge.

Family court is more friendly to pro se litigants, with less paperwork and simpler rules. However, if your case is complex (e.g., abuse allegations, criminal history), you should hire an attorney.

If you choose to litigate on your own in either court, familiarize yourself with all the resources available to parents seeking custody. Many lawyers offer free or low-cost consultations.

In collaborative law, lawyers are required. In mediation, on the other hand, parents often don't use lawyers because the mediator serves as a neutral party looking for a solution acceptable to both parties.

If you and the other parent reach an agreement on your own, it's recommended you have your paperwork looked over by a professional.

Confidentiality

All family and supreme court hearings are open to the public. A judge may occasionally exclude the public from the courtroom for security reasons or to otherwise protect the parties involved, such as in a high profile case.

The public cannot access family or supreme court records. Only those directly involved in the case can get copies of court orders and files. But those people can show the records to whomever they choose.

Transcripts from a child's private testimony before the judge (called a Lincoln hearing) are sealed, meaning they're not even accessible to the parents or their lawyers.

Forensic evaluation reports are often inaccessible to parents, including pro se litigants. Some judges permit lawyers to share these reports with parents, but others disallow it.

You can request to keep your contact information from the other parent if disclosing it would put you or your child at risk.

New York custody and visitation laws

For more about custody and visitation in New York, see Article 6 of the Family Court Act and Article 5 and Section 240 of the Domestic Relations Law.

Staying organized during a custody case

The process of deciding custody requires serious organization. You may need to create a parenting plan, draft multiple custody and visitation schedules, track your time with your child, calculate expenses and beyond.

The Custody X Change app enables you to do all of that in one place.

With a parenting plan template, customizable custody calendars, an expense tracker and more, Custody X Change makes sure you're prepared for whatever arises in your journey to child custody.

Take advantage of our technology to stay on top of all the moving parts of your case.