Custody
Custody is a legal way of taking care of your children and keeping them safe, especially if you are worried that the other parent may hurt them.
What is custody?
Custody is the legal responsibility to care for a child. New York courts can make custody orders for children under 18. Custody orders say who will care for the children and where they will live or spend time.
Custody includes legal custody and physical custody.
Legal custody is who has the right to make important decisions about a child’s upbringing, education, health care, and religion. There are 2 types:
- Sole legal custody: One parent makes these decisions.
- Joint legal custody: Both parents decide.
Physical custody is who a child lives with. There are 2 types:
- Sole physical custody: The child lives with one parent more than half the time. The child has visitation with the other parent.
- Joint physical custody: The child lives half the time with each parent.
Both parents have equal rights to physical and legal custody of their child. If a court makes a custody order, the order will be based on what is best for the child.
Can I file for custody?
You can file for custody if you are an adult who plays an important role in a child’s life. This includes:
- Grandparents
- Aunts and uncles
- Older siblings
- Family friends
Courts use different standards depending on who files for custody.
Parent filing against the other parent
If you are a parent filing for custody against the other parent, the court will decide what is in the child’s best interests. It will look at many things that affect the child’s well-being, such as each parent’s:
- Previous caretaking of the child
- Mental and physical health
- Work schedule
- Parenting skills
- Any history of domestic violence between the partents
- Ability to share parenting duties with the other parent if the court gives joint custody.
The court usually considers what the child wants if the child is at least 13 years old.
Non-parent filing against a parent
The court must consider if there are extraordinary circumstances, such as:
- Neglect or abandonment
- Abuse
- Parent in prison
If there are extraordinary circumstances, the court will consider giving custody to someone who is not a parent. The court will decide what is in the child’s best interests. This means looking at which party can best meet the child’s needs.
How do I file for custody?
To start a child custody case:
- File a custody petition in the Family Court in the county where your child lives. Use Family Court custody petition form. It is free to file in Family Court.
OR
- If you are filing for divorce, file for custody as part of your divorce case. File in the Supreme Court in the county where your child lives. You have to pay filing fees in Supreme Court.
Serve the other parent(s):
- If you are a parent filing a custody petition against the other parent, you must have a copy of the petition and summons served on (given to) the other parent.
- If you are not the parent and are filing a custody petition, you must serve (give) a copy of the petition and summons on both parents.
After the other party is served, there will be a custody hearing in Family Court.
What if the other parent (or person) doesn’t obey the custody order?
If the other parent (or person) doesn’t obey the custody order, you can file a petition asking the judge to make them obey it.
Need help? The Court’s free custody/visitation enforcement petition program can help you fill out your Family Court forms.
How do I change a custody order?
You can file a petition to ask the court to change your custody order.
You MUST show that there has been a substantial change in the situation. Examples include a change in one of the following:
- Child’s educational needs
- Child’s health
- Parent’s move to a new location
Need help? The Court’s free custody/visitation modification petition program can help you fill out your Family Court forms.
For more information:
NY State Courts custody basics
Custody Court Forms
NY State Courts Divorce Basics
Find a court’s contact information
Updated 9/4/24