To have custody means to be in charge of someone. There are two kinds of custody: legal and physical. Legal custody is when an adult has the responsibility of making important decisions – such as medical or religious decisions – about the life of a child. Physical custody is when an adult is responsible for a child and takes care of the child most of the time. Other people may have visitation, or the right to see the child during certain times.
If You’re a Parent of The Child
Generally in NY, if the parents are married and are seeking a divorce, the custody of children is decided as part of the divorce. If you cannot afford a lawyer, the judge for your divorce must provide a lawyer for you to help with the custody and visitation part. See more about the process of divorce in New York >
If the parents were never married or are married but have not started a divorce, either parent can go to family court to ask for custody. Click on “Asking for Custody” above for more information.
If the parents are already divorced, the parent who does not have custody may be able to get custody if a “substantial change of circumstances” has happened since the arrangements were first made. Click on “Changing Custody” above for more information.
If Both Parents Generally Agree
If the parents generally agree on what changes they would like to see in custody or visitation, they can choose to work with a free court “mediator” rather than letting a judge decide. Mediation is when someone called a mediator helps you and the other parent come to an agreement. However, mediation is not a good idea when there has been domestic abuse. See more about about working with a Mediator in New York Family Court (NYCourts.gov)>
If You’re Not a Parent of the Child
Anyone who plays an important role in the life of the child, such as a grandparent or sibling, may also ask the court for custody. You do not have to be a biological parent of the child. But the judge will look at the case differently if you are not a parent. Click on “If You’re Not the Parent” above for more information.
If you are in the process of divorce, the custody of children is generally decided as part of the divorce. But if you are not married to the other parent, or not yet going through the process of divorce, you can define who is responsible for a child with a “petition for custody”. Ask for the “petition”, or written request, from the courthouse in the county where the child has lived for the last six months (or in the borough, if they lived in New York City). It’s free to file a custody petition.
The paperwork can be complicated, and it must be “notarized”, or signed by an authorized person, and “served”, or delivered personally, to the other parent or whoever currently has custody of the child. Ask at the courthouse for help understanding the process.
If you agree, or come close to agreeing, with the other parent on custody arrangements, you might want to work with a “mediator” to finalize your plans, rather than relying on a judge to decide. A mediator helps you and the other parent come to an agreement. However, mediation is not a good idea when there has been domestic abuse. See more about about working with a Mediator in New York Family Court (NYCourts.gov).
If you and the other biological parent can’t agree on custody, a judge must determine what is in the “best interests of the child.” The judge will look at many things when figuring this out. The case will not be decided based on who loves the child more or who has more money. The judge does not favor a mother over a father, even if the case involves a young child. Other things that the judge will likely consider include:
- who has been the child’s primary caretaker
- the quality of each parent’s home environment
- how “fit” the judge thinks each parent is (taking into account any mental illness that the parent may suffer from)
- which parent the child is living with now and how long that arrangement has been in place
- each parent’s ability to provide emotional and intellectual support for your child
- which parent your child wants to live with, if s/he is old enough to make an informed decision
- whether your child would be separated from any siblings
- whether either parent has been abusive to the child.
In most custody cases, the court will provide a free lawyer who tries to find out what the child wants. The lawyer is called a law guardian or “attorney for the child.” If the child is old enough to say what he or she wants, it will have a lot of importance. However, the court and the law guardian will want to be sure that it is what the child really wants, not what one parent has asked the child to say. It is very important that you do not tell a child what to say.
If there’s a big change after the court makes a custody order, you might be able to get the court to change the order. The change will need to be big enough to count as a “substantial change of circumstances.” Things that may count as a change in circumstance include:
- The child has been abused or neglected
- There has been domestic abuse in the home
- The child is over 12 years old and wants to live with the other parent
- A parent is moving in with a new partner, moving to a different state, or had a significant change in income
- A parent been charged with a serious crime, has a substance abuse problem, serious illness, or is interfering with the rights of the other parent
- A parent has returned from military deployment
To begin the process of changing your custody order, you will need to fill out the forms for a “Petition for Modification of an Order of Custody/Visitation.” “Petition” means to ask, and “Modify” means to change. Get the forms in the courthouse in the county where the child has lived for the last six months (or in the borough, if they lived in New York City). You can also file this “Petition for Modification of an Order of Custody/Visitation" through the NY Courts website. It’s free to file a custody petition.
The paperwork can be complicated, and it must be “notarized,” or signed by an authorized person, and “served” to the person who currently has custody of the child. Ask at the courthouse for help understanding the process.
You can ask for custody of a child even if you’re not a parent. This is more common if you’re a grandparent or a sibling, but anyone can ask for custody. The process of asking for custody is the same, but the judge will consider different things.
First, the judge will decide whether there are “extraordinary circumstances”. Examples of some extraordinary circumstances are:
- when a court has determined that there has been abuse or neglect
- the child has been harmed by continued domestic violence
- when there is substance abuse in the home of the parent
- If you have been caring for the child for a very long time. It is automatically considered to be an extraordinary circumstance if a grandparent has been caring for a child for two years.
If there are extraordinary circumstances, the judge will decide what is in the “best interests of the child”. These considerations are the same as if you’re asking for custody. Click on “Asking for Custody”, above, for more information. If there are no extraordinary circumstances, the judge will give the biological parent custody.
Last Reviewed: July 15, 2022