Child Custody in New York

• Types of custody in New York
• Legal vs. physical child custody
• How child custody is established in New York
• New York child custody laws and requirements
• FAQ

In New York, child custody can be joint or sole. Joint custody means that both parents have equal custody, and sole custody means that only one parent has custody. 

There are also two types of custody to know about in New York: legal and physical. Legal custody refers to one’s ability to make major decisions about a child’s upbringing. Physical custody denotes one’s ability to keep a child at home and physically provide for their needs. A parent with one of these types of custody over a child often has the other type as well, but not necessarily.

Keep reading to learn what you need to know about child custody in New York.

What are the different types of custody in New York?

As we mentioned, there are two types of custody in New York: legal and physical. Each of these can be joint, meaning a child’s parents share the custody, or sole, meaning only one parent has that custody.

Let’s explore legal and physical custody in more detail.

Legal custody in New York

Having legal custody over a child means one has a say in important decisions that need to be made about their care, including the medical care they receive and their religious upbringing. Legal custody is distinct from physical custody, which is discussed more in the next subsection. 

If both parents have legal custody of a child, both people play a role in determining the child’s upbringing. Therefore, they must come to an agreement on the decisions that influence that upbringing regardless of whether the child happens to live more with one parent or the other.

Physical custody in New York

A parent with custody, also called residential custody, is accountable for the physical care and management of a child. In essence, it refers to the person (or persons) a child lives with. 

If parents have joint physical custody, their child spends time living with each of them. If a parent has sole physical custody, their child spends more than half of their time with that parent. The other parent is a noncustodial party who (usually) has visitation rights.

How is child custody established in New York work?
Judge or court referee

There are a few options to begin the process of establishing custody over a child in 2023. If you and your ex-spouse are unlikely to agree on custody arrangements, you can file a custody petition and have a judge or court attorney-referee hear your case. The court will examine the merits of awarding custody to either parent and focus on what seems to be in the best interest of the child.

Mediation

Another option for determining child custody in New York is mediation. This is generally better for parents who can agree on at least some aspects of how custody should be set. 

Mediation is a less formal process than going to court. You and your ex will meet with a mediator who guides your discussion and keeps things productive. The goal is to reach an agreement on how custody should be set, following some established guidelines. 

Mediation allows you to skip what could otherwise be a lengthy legal process. As a result, this generally saves both parties substantial money and time.

New York child custody laws

What are child custody laws in New York for deciding on custody and visitation?

As touched on in the previous section, New York (and many other states) focus on a child’s best interests when making custody decisions. The rules around custody are fairly broad to allow a judge to use their best judgment on what that means. 

Factors likely to influence a judge’s decision include the following:

• Whether either party has a history of domestic violence or of posing danger to themselves or others
• The mental and physical health of each parent
• The schedules of each parent and how they intend to care for the child if awarded custody
• The ability of the parents to cooperate and work toward the child’s best interests
• Important familial relationships in the child’s life, such as siblings who may live with one parent or the other
• Each person’s parenting strengths, weaknesses, and overall ability to meet the child’s needs
• The child’s own personal wants, assuming they are old enough to meaningfully make such decisions

Child custody requirements in New York

What are the requirements to get custody of a child in New York?

Getting custody of a child generally requires the child to be “of your marriage,” either through producing the child biologically or adopting them together. You must also be able to prove you are a good candidate for custody based on the factors listed in the previous section. 

Some factors can trump others when it comes to awarding custody. For example, if you have a history of being violent, you may not be awarded custody or even visitation rights, even if you can show your abilities as a parent in the other areas a judge normally considers. Your child’s safety and well-being, as seen from the perspective of your judge, is what ultimately decides custody in most cases.

FAQ

What if I don’t want the court to decide for me?

If you don’t want the court to make these decisions, you and your ex will need to agree on the issues through a process like mediation. If you go this route, you still cannot make decisions that the court would deem dangerous to the child – but you do have more leeway in deciding who gets custody.

If you and your ex can set aside your differences to work out aspects of child custody in mediation, you may be better poised to get more of what you want.

Can physical and legal custody be separate?

While physical and legal custody are often thought of as the same, and many times a parent with one also has the other, they are still distinct. 

For example, you may want to have a say in a child’s upbringing yet be unable to house them. In this situation, you might seek joint legal custody but want your ex to have sole physical custody.

What happens if someone does not follow child custody orders put in place by the court?

The penalty for violating a child custody order varies. It is often based on the severity of the offense, and it can potentially be a serious crime. 

At best, a person who violates a child custody order is effectively committing contempt. The other parent can file a motion for contempt in response to the violation. At the mildest point, the court is likely to order the violating parent to comply with their previous custody orders and may offer compensatory time to the wronged parent to make up for time missed as a result of the violation.

In severe cases, a violating parent may be committing what is called parental kidnapping. This is when one parent actively takes a child from the other parent in a way that deprives that parent of custody or visitation time. This is generally done to relocate the child to another state without the other parent’s consent in an effort to have sole custody over a child, albeit illegally

Although parental kidnapping isn’t considered the same as a typical child abduction, it can still result in a jail sentence, and such behavior would reflect very poorly on you in any future discussions about custody.

How can you change a custody and visitation order in New York?

Custody and visitation orders can be changed, but this generally only happens if the circumstances have also significantly changed. You can petition for a change through a Custody/Visitation Modification Petition. By following the link provided, you can use a free program to help fill out the petition. Then, you would need to file it in family court. 

Keep in mind that being dissatisfied with a custody order is not enough to get it changed. There must be a significant change in circumstances. For example, a parent with a history of drug abuse would likely need to demonstrate that they went to rehab and maintained continued sobriety. 

What fees are associated with child custody in New York?

Custody battles typically occur in family court, where there are no filing fees. Admittedly, these court cases can still be quite expensive if you hire a lawyer. If you opt for mediation to decide child custody issues, your costs will be significantly lower.

If you’re not awarded custody of a child, you may need to pay child support until the child is at least 18 years old. The precise amount would be calculated by the court based on your and your ex’s income and assets.

Mother vs. father: Does one spouse have more rights than the other?

Mothers and fathers in New York are legally considered to have an equally valid claim to custody in 2023, all else being equal. However, there is a discussion among experts about how much de facto bias still occurs in this regard. Many argue that women still get favored when there are no other factors at play.

Ideally, the judge will recommend the custody arrangement that serves the best interest of the child, regardless of whether the mother or the father is the person providing that situation.

References