Child Custody and Visitation Rights in New York
What is child custody?
Child custody describes the legal relationship between a parent and child. There are different types of custody. “Physical custody” is about where the child lives. “Legal custody” decides which parent has the right to make important decisions in the child’s life.
What do I need to know about child custody in New York?
Neither parent has a preferred right to custody of their children in New York. This means, for example, that the child’s mother does not have a greater right to custody of the child than the legal father. If there is no custody order, either parent can keep the child with him or her.
Where can I go to get custody of my child?
Either parent can apply for custody in Family Court. If you cannot afford a lawyer, Family Court will appoint one for you. You can also try to get custody in Supreme Court after a divorce has started, but this can be hard to handle without a lawyer.
It is important to know that you can only have one case open at a time. This means that if you have a divorce case open in Supreme Court, you cannot try and get custody in Family Court until the divorce in Supreme Court is settled.
How does the court decide who gets custody of the child?
First, the court decides if it has jurisdiction to hear the case. Usually, this means the child must have lived in New York for the past six months. If this is not the case, you will have to file for custody in the state where your child has most recently lived for six months. For example, if you and your child moved to New York three months ago, you will have to wait another three months until you can file for custody in New York. If your child is less than six months old, you may need to file for custody in the state where your child was born.
The court must make its custody decision in the “best interests of the child.” The court does not automatically assume that the mother is the better parent.
The court looks at who the “primary caretaker” of the child is. The primary caretaker is the parent who spends the most time with the child, and is the parent the child first turns to if they need something. For example, the parent who feeds the child, takes them to school, changes diapers, gets them dressed, and does other similar chores is probably the primary caretaker.
The parent who has physical custody of the child when the custody application is made to the court may have an advantage, because the court does not want to disrupt the child’s life.
The court looks at the parents’ lives and the homes they would provide for the child. For example, the court can consider how well the child gets along with the other people in the parent’s home, whether the parent drinks or uses drugs, whether the child would be separated from siblings, and the amount of time the parent could spend with the child. If domestic violence is listed in the custody petition the court will consider it as well.
In most custody and visitation cases, the court will appoint an “Attorney for the Child.” This lawyer will interview the child, and can also speak with the parents, if their attorneys agree. This “Attorney for the Child” will argue for what is best for the child, even if the parents do not agree. The court can consider where the child wants to live, but does not have to follow the child's wishes. The older a child is, the more a court will consider his or her wishes.
What is joint custody?
Joint custody means that both parents share responsibility for making decisions about the child. The court does not have to give joint custody. It can give custody to only one parent. The court usually will give custody to only one parent if it looks like the parents are not able to cooperate and work together.
If parents have joint legal custody, they have to talk about and agree on important decisions such as the child’s medical care, education, or religion. Both parents have access to the child’s medical and school records.
Everyday decisions such as the child’s bedtime or permission for field trips are handled by the parent that has physical custody.
Does joint legal custody exist in New York?
Both parents can have joint legal custody in New York. Lots of communication and cooperation are needed for joint custody. Unfortunatley, if two parents are getting divorced, they often are not cooperating. A court should only give joint legal custody if the parents can get along. It can be very difficult to change joint custody once you have agreed to it, so be sure that you and the other parent can talk peacefully about what is best for your child.
Sometimes parents agree that the parent who does not have custody of the child has the right to be told about all major decisions about the child. If the parents disagree, however, the parent who has custody makes the final decision.
Can the custody of my child be changed?
Custody or visitation can be changed if there is a significant change of circumstances that affect the child’s interests. Small changes will not change custody. The court will not want to change the child’s routine without a good reason. Visitation can be changed as the children grow older, or when work schedules change.
If the parent who has custody of the child wants to move so far away from the other parent that visitation would be affected, he or she may need to get permission from the court to move. It is a good idea to talk to a lawyer before you plan your move.
If you do not have custody of the child, and the other parent plans to move so far away that you will not be able to easily see your child you can apply to the court for an order that prevents the move, or changes visitation.
If the parents were never married, does the father have custody rights?
If the parents were never married, and the parents never signed an “Acknowledgment of Paternity,” the father has no custody or visitation rights. He can only get custody and visitation rights if he legally establishes paternity. For more information, please see the article titled “Paternity in New York.”
How can the father establish paternity?
There are two ways the father can establish paternity. The first way is to file a petition and get a court order. This is usually done in Family Court. The second way is to have both parents agree, in writing, who the father is, and to record this with the child’s birth certificate. You cannot do this if the mother is married to someone else when the child is born. Your local Social Services Department can help make a paternity application. It is a good idea to ask for a custody or visitation order when you make your paternity application. For more information, please see the article titled “Paternity in New York.”
What happens if I have a custody order and the other parent won’t give me my child?
If you have a custody order and the other parent takes the child from you or won’t return the child from a visit then the other parent could be arrested for kidnapping. He or she could also be charged with interfering with your custody.
Can I make the other parent give me my child if I don’t have a custody order?
You will probably have to apply to the court for a custody order before you can make the other parent give you the child. It is not a good idea to hide the child from the other parent even if there is no custody order. If you do this, the other parent could use it against you in a custody suit. The other parent could also apply for custody and have the child taken from you.
What do I need to know about visitation rights?
The parent who does not have physical custody of the child can almost always get “frequent and meaningful” visitation. Many visitation schedules are every other weekend, every other holiday, and if the parents live nearby, maybe one night in the middle of the week. The court usually gives the other parent overnight visitation unless the parent does not have a safe place for the child to stay.
Visitation rights will only be denied if visitation would be bad for the child. Even an abusive parent can get supervised daytime visitation.
What happens if the parent who has custody of the child refuses to give me visitation?
If the parent who has custody of the child refuses to give you your court-ordered visitation the custody could be changed. Make notes of the times that visitation was denied, and apply to the court for help.
Do I have to let the other parent visit if he or she doesn't pay support?
You cannot refuse visitation because the other parent has not paid support. If the other parent does not pay support, however, he or she could go to jail. Never refuse to give the other parent their court-ordered visitation unless it would put your child in danger (for example, the other parent shows up drunk). If the current visitation arrangements are bad, ask the court to have them changed.
What happens if the other parent won't visit his or her child?
A parent cannot be forced to visit their child, but the court can limit their visitation rights, and only give them back slowly to grow the relationship between child and parent again.
Can family members other than parents apply for visitation rights?
Half-siblings and grandparents can apply for visitation rights. The court does not have to grant them. A parent is always entitled to custody over a non-parent unless there are “extraordinary circumstances”, such as the parent is unfit to care for a child.
Please remember to keep the best interests of your child in mind at all times.
* * * * *
(c) Legal Assistance of Western New York, Inc. ®
This article provides general information about this subject. Laws affecting this subject may have changed since this article was written. For specific legal advice about a problem you are having, get the advice of a lawyer. Receiving this information does not make you a client of our office.