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

Visitation

Some crime victims may need to change the amount of time they spend with their child.  You may have to do this through a court order of visitation.

What is visitation?

Visitation is a schedule that says when you can spend time with your child.

The court often decides visitation as part of a custody case. If the child lives with one parent, the other parent usually has visitation.

The court considers what is best for the child. Usually, a parent has the right to spend quality time with a child, unless it would be harmful to the child.

Can I ask for visits?

You can file for visitation if you are a child’s:

• Parent
• Grandparent or 
• Sibling

What if my child is in foster care?

If the court has not “terminated” or ended your rights as a parent, you have the right to visit your child.

How do I file for visitation?

If you want visits with your child, ask the court for visitation. You will need to file a petition in the Family Court in the county where your child lives.

It is free to file in Family Court.

What are the different types of visitation?

Supervised visitation is when the court orders that someone else be present during a visit between a parent and a child. Supervised visits are ordered when the court believes the child would be in danger if left alone with the parent.

The supervising adult can be:

• Family member
• Friend or
• Staff at an agency

Unsupervised visitation means the parent can visit the child alone. Most visitations are unsupervised.

What if the other parent doesn’t follow the visitation order?

If the other parent is not following the visitation order, file a petition. Ask the judge to order the other parent to follow the visitation order.

Need help? The Court's free Do-It-Yourself (DIY) custody/visitation enforcement petition program can help you fill out your Family Court forms.

How do I change a visitation order?

If you need to change your visitation order, file a petition to ask the court. You must show the situation has changed in an important way. For example:

• There is a change in a parent's finances or home.
• The child is abused or neglected.
• The child is asking for a change in visitation.

Need help? The Court’s free Do-It-Yourself (DIY) custody/visitation modification petition program can help you fill out your Family Court forms.

Updated 3/7/23

Paternity

Some crime victims may need financial help and protection for themselves and their child. If you and the other parent were not married when the child was born, you must prove paternity before you can ask for child support, visitation, or custody.

What is paternity?

Paternity shows who is a child’s legal father.

A legal father has a:

• Right to custody and visitation with his child, and
• Responsibility to pay child support.

How do I prove paternity?

In New York State, if the parents are married when the child is born, the husband is the child’s legal father.

But if the parents are not married when the child is born, the child does not have a legal father.

Unmarried parents can prove paternity by:

• Acknowledgment of Paternity: Both parents sign an Acknowledgment of Paternity Form, OR
• Order of Filiation: If one parent refuses to sign the Acknowledgement of Paternity, file a paternity case in Family Court. The court can make an Order of Filiation.

Can I file for paternity?

You can file for paternity if you are the:

• Child's mother
• Man who believes he is the father
• The child
• Child's guardian

If the child received public assistance, the Department of Social Services may file a paternity petition.

How do I file for paternity?

To file for paternity, follow these steps:

1. File a paternity petition in the Family Court in the county where your child lives. It is free to file in Family Court.

2. Have the other parent served (given) a copy of the petition and summons.

Need help?

The Court’s free Do-It-Yourself (DIY) paternity petition program can help you fill out your Family Court papers.

Updated on 3/7/23

Sometimes, family members commit crimes against each other.

Depending on the type of crime, and depending on the relationship between the two people, the crime could be considered a “Family Offense”. The victim of the family offense can go to Family Court to ask for an Order of Protection against the other person.

For more information, please go to the following sections of this website:

Added 9/5/24

Divorce

Crime victims often experience emotional and psychological trauma. The trauma can affect your relationships with friends and loved ones, and may even impact your marriage. This section has basic information about divorce and resources that can help you.

What is a divorce?

Divorce is the legal ending of a marriage by court order.

A divorce case can deal with issues including:

• Custody of the children
• Child support
• Dividing up property, such as your home and cars
• Payment of bills, such as your mortgage, credit cards, personal loans and debts

There are 2 kinds of divorces:

• Uncontested divorce: Both spouses agree to the divorce and agree about the children, property, finances, and other issues.
• Contested divorce: The spouses do not agree about the children, property, finances, and other issues.

Can I get a divorce?

To get a divorce in New York State, you must prove 1 of these things:

• Irretrievable breakdown: For at least 6 months, one or both spouses have not wanted to live with each other, and your relationship cannot be fixed.
• Cruel and inhuman treatment:  Your physical or mental health is in danger if you keep living together.
• Abandonment: Your spouse left you at least 1 year ago and does not plan to return.
• Imprisonment:  Your spouse has been in jail for at least 3 years after you got married.
• Adultery: Your spouse committed adultery.
• Legal separation: You and your spouse have lived apart for at least 1 year after signing a legal  agreement to separate.
• Judgment of separation: You and your spouse have not lived together because of a “judgment of separation.”

AND you must meet 1 of these residency requirements:

• You or your spouse have lived in New York for at least 2 years before the divorce case is started.
• You and your spouse lived in New York when the divorce started and the reasons for the divorce happened here.
• You or your spouse have been living in New York State for at least 1 year and (1) you got married in New York State, or (2) you lived here as a married couple, or (3) the reason for the divorce happened here.

For more information about residency and divorce grounds, visit the NY Courts website.

How do I file for divorce?

You can file for divorce in Supreme Court in the county you live.

If you and your spouse agree about all the issues in your divorce, use the uncontested divorce packet.

• If you do not have children under 21 with your spouse and your relationship ended at least 6 months ago, you can use the Court’s free online Do-It-Yourself (DIY) Uncontested Divorce Program. 
• If you have children under the age of 21 with your spouse, use the hard-copy forms in the Uncontested Divorce Packet Forms 

If you and your spouse do not agree about all the issues in your divorce, such as property, support, custody, or visitation, talk to a lawyer. A contested divorce can be complicated. You may have to go to court several times.

To find a lawyer, visit our Legal Help Directory.

After you file for divorce, you must have your spouse served (given) a copy of the divorce papers.

To learn more about how to serve divorce papers, visit serving the defendant in an uncontested divorce to learn more about service.

For more information about divorce in New York State, please visit the NY Courts website.

Updated 7/11/23

Mediation in Family Law Matters

Now that New York State has Presumptive Alternative Dispute Resolution (ADR), when you file for child custody, visitation, or child support you may have the option to have your case referred to mediation.

Please go to the Presumptive ADR and Mediation section for more information. 

How can mediation help in family law cases?

If you are separated from your child’s other parent, mediators from Community Dispute Resolution Centers (CDRC) can work with both of you to help make plans for how to raise your children. Their services are free or low-cost.

Mediators can help you talk about:

• Who will make decisions about the child (custody)
• How to share parenting time (parenting plans or visitation)
• How to handle child support
• If you need to change the custody or child support orders you already have

Mediation also improves communication between parents, which has a positive impact on the children.

My case is already with a family court judge. Is it too late to use mediation?

No, it is not too late. You can ask if your case can be sent to mediation at any stage in the legal process. But both you and the other party need to agree on mediation, or the case will stay with the judge.

Can I go to mediation before going to Family Court for help?

Yes, you can. You can contact a CDRC anytime you have a conflict or disagreement. Please go to the Legal Help Directory or to the NY Courts website to find a CDRC near you. 

Developed with assistance from NYS Unified Court System, Office of ADR Programs

Updated 3/7/23