New York City Child Custody Cases: The Basics

Custody disputes can get complicated and contentious. But no matter the state of your relationship with your ex, you must find a custody arrangement that protects the well-being of your child. If you and your ex can't agree on how to share time with your child, a local family court may have to get involved.

This article explains the essentials of New York City child custody cases. If you're having a custody dispute, contact a family law attorney right away.

Custody Defined

Courts split the legal term "custody" into two categories: legal and physical custody.

• Legal custody is the right and responsibility to make important decisions for a child.
• Physical (or residential) custody is where a child lives.

These two types of custody do not need to match. For example, a child may live with one parent (sole physical custody), but both parents can have input on important life decisions for the child (joint legal custody).

The court may order joint physical custody if the judge wants the child to share time with both parents. In this arrangement, the parent with physical custody at any given time may make day-to-day decisions. Still, both parents must collaborate on major decisions on the child's education, health care, and religion.

How Does the Judge Decide Who Gets Custody?

The judge will make the custody decision based on one question: What is in the best interests of the child?

Contrary to popular belief, New York law does not favor mothers over fathers. Both have an equal opportunity to prove that having custody is in the child's best interests. Courts generally favor whoever is the child's primary caretaker, but also weigh many other factors, including but not limited to:

• The parenting skills of each parent
• Each parent's ability to provide for the child's special needs, if any
• The mental and physical health of the parents
• Whether there has been domestic violence in the family
• Parents' work schedules and child care plans
• The child's relationships with brothers, sisters, and extended family
• The child's wishes
• Each parent's ability to cooperate with the other parent and to encourage a relationship with the other parent when it is safe to do so

In contested child custody cases, the court might appoint an "attorney for the child" (AFC) to help. The AFC is a licensed attorney tasked with determining the child's wishes.

Children can't make the custody decision themselves until they turn 18, though, of course, their wishes are considered along with the other factors. The child's preference is also given more weight as they get older.

The judge may also order a forensic custody evaluation. A licensed psychologist, psychiatrist, or social worker will perform these evaluations. They will talk to the family members and other mental health professionals who have worked with the family to determine what's in the child's best interests.

Visitation Rights

Even if the other parent got sole custody of the child, you can arrange a visitation schedule to spend time with your child. New York courts generally want children to have a relationship with both parents.

Visitation is also sometimes called "parenting time." But note that visitation is not only for non-custodial parents but also for brothers, sisters, and even grandparents.

Below are a few examples of different types of visitation:

• If there is no physical or emotional danger to the child, the judge will probably allow unsupervised visits.
• If there are serious concerns about a parent's ability to act properly with the child or where there has been domestic violence. In that case, the judge may order the visits to be supervised.
• If the parent-child relationship has deteriorated, the judge may order therapeutic supervised visits, where a mental health professional is present to improve the parenting skills of the parent.

Depending on the relationship between the parents, the judge could also order a neutral place of exchange, for example, the police station or the child's school. If there are ongoing concerns or constant bickering between the parents, the transition may be supervised by a neutral third party.

Child Custody for Unmarried Parents

Child custody arrangements are most often addressed as part of a divorce. But if you and your ex were not married, you can still petition for custody. To start, you'll file a custody petition in the borough where the child has lived for the last six months.

Can Grandparents Win Custody?

It is not easy for relatives to get custody over parents, but it is possible. Grandparents, aunts, uncles, and other relatives who want legal custody have to show the court that both parents are not fit to care for the child. For example, if the parents have abandoned, neglected, or abused the child, a qualified relative may get custody.

Can I Modify a Custody Order?

Yes, you can petition the court to alter the custody or visitation order at any time. The parent who asks the court to modify the custody order just has to show a significant change in circumstances. For example, one parent is moving out of state for a new job. Other substantial changes might include:

• Changes to one parent's work schedule
• A medical emergency
• Failure to follow the visitation schedule
• Signs of substance abuse or an unsafe home environment

Fortunately, this is pretty easy because the New York court system runs a free program to guide you through creating a petition to modify an order. When finished, you can take the completed petition to the nearest NYC courthouse for filing.

What If My Ex Won't Follow the Visitation Schedule?

Although it is best for parents to remain cordial and cooperate for the benefit of their children, it is not unusual for difficulties to arise with the scheduling and maintenance of custody or visitation. In these circumstances, the best course of action is to file an Enforcement Petition at your local courthouse. New York courts have another free program for creating an enforcement petition.

More Resources

• New York Child Support Laws
• New York Child Abuse Laws
• New York Family Laws

Can't We Avoid Court?

Yes! NYC courts often favor settling disputes out of court through informal agreements or child custody mediation.

Mediation is not mandatory in a child custody setting, but it is often better than prolonged litigation. Most important, a mediator does not make decisions for you. Instead, they listen to your family's needs and help you craft a parenting plan that will work for them. Once you reach an agreement, it gets sent back to court. If the judge agrees, the child custody agreement becomes a court order.

For more info, check out our thorough guide to New York state custody law, or find more general information in FindLaw's child custody section. If you need help with your child custody case, hire a local family law attorney for legal advice.