Custody and Visitation

  1. What is legal custody?

    A person who has legal custody of a child has the right to make important decisions for that child including, but not limited to, educational, medical and religious decisions. In New York, courts have the power to make decisions regarding the custody of a child until a child attains the age of 18 years.

  2. Who has custody if there is no court order?

    If there is no order in place, both parents share equal rights to legal and physical custody of the child.

  3. Are there different types of legal custody?

    Yes. Generally, a parent (or other person with custodial rights) may possess rights of either “sole” custody or “joint” custody. A parent with sole custody generally has the sole authority to make any and all final decisions concerning a child’s welfare. When parents share joint custody of a child, both parents have equal authority to make decisions for that child with neither parent having any more authority than the other. In most situations where parents share joint custody, the child will usually reside with one parent and enjoy regular visitation with the other parent. The parent with whom the child lives is said to have “physical” or “residential” custody.

  4. Who can file a petition for custody?

    Generally, a child’s legal parent, whether married or unmarried to the child’s other parent, can file a petition for custody. A non-parent, such as a grandparent, sibling, stepparent, or domestic partner, can also file a petition for custody of a child. However, in a contest between a parent and a non-parent, the parent generally has superior rights over the non-parent. In fact, in order for a court to even consider a non-parent’s petition for custody as against a parent, the non-parent must first show that extraordinary circumstances exist before the court will proceed to decide what is in the best interests of the subject child. Examples of extraordinary circumstances may include (and are not limited to) situations where a parent has abandoned a child or where a parent has abused and neglected a child.

  5. Does a parent who does not have legal or physical custody still get to see the child?

    In most cases, yes. Usually, a parent who does not have legal custody, or who has joint custody but not physical custody, has rights to some form of visitation with the child. This means that the child may visit and spend time with that parent (i.e., the non-custodial parent) on a regular basis. The terms of the visitation are either agreed upon by the parties or determined by the court. Typical terms include whether visits are to be supervised or unsupervised and/or whether visits will occur pursuant to a specific schedule or whether visits will be arranged directly between the parties at such times as are mutually convenient for the parties and child.

  6. Who can file a petition for visitation?

    Generally, a child’s parent or a relative (such as a grandparent or sibling) may file a petition for visitation. However, it can be challenging for a grandparent or sibling to obtain an order. In order to obtain an order, the grandparent or sibling may have to show that 1) either one or both parents are deceased and/or 2) that visitation should be granted in the interest of fairness. The grandparent or sibling will further be required to show that he or she had either maintained, or made a substantial attempt to maintain, a regular and meaningful relationship with the child.

  7. Where and how do I file a petition for custody or visitation?

    Generally, if a child has resided in New York State for at least six months, a petition for custody of that child may be filed in either Family Court or Supreme Court in the borough where the child lives. In Family Court, no filing fees are required, and court clerks are available to help draft and file the petition. In Supreme Court, however, fees are required to commence the proceeding, and court clerks are generally not available to help draft and file petitions. For these reasons, most people tend to commence proceedings for custody or visitation in Family Court as opposed to Supreme Court. Usually, issues of custody and visitation are heard in Supreme Court only when connected to an action for divorce.

  8. Am I entitled to an attorney?

    If you are a parent involved in a contested custody proceeding and can show that you are not financially able to hire a lawyer to represent you, you are entitled to the assistance of a court-appointed lawyer free of charge. If you would like to have a lawyer appointed to represent you, you should make your request to the judge or referee assigned to hear your case at the earliest possible opportunity.

  9. How does the court decide custody?

    The court must make a decision based on the “best interests” of the child involved and will consider many different factors, including, but not limited to, who has been the child’s primary caretaker, the child’s current living situation, the ability of each parent to provide for the child’s physical, emotional and educational needs, the home environment of each parent, the ability of each parent to encourage a healthy and safe relationship with the other parent, and whether acts of intimate partner/domestic violence have been committed by any party. The court will also give the child’s wishes due consideration provided the child is of an appropriate age and has the ability to express a reasonable opinion.

  10. What is an attorney for the child(ren) (formerly known as law guardians)?

    An attorney for the child is a lawyer who represents the child in a custody or visitation proceeding. As the child’s lawyer, the attorney for the child’s role is to converse with the child and express the child’s wishes to the court. If the child is too young to have an opinion, the attorney for the child may make and express his or her own judgments about what would be in the best interests in the child.

  11. I am a victim of intimate partner/domestic violence. Will the court consider this information when making a decision about custody and/or visitation?

    Yes. The law specifically requires that the court must consider any allegations of intimate partner/domestic violence when making decisions regarding custody or visitation of a child.

  12. If there is already an order of custody or visitation, can it be changed?

    If there is already an order of custody or visitation, can it be changed? Yes. In order to seek a change to an existing order of custody or visitation, the parent or other person seeking the change must file a petition to “modify” the order of custody or visitation. This petition is called a “modification petition.” However, the court will only modify an order if the person requesting the change can show that 1) there has been a substantial change in circumstances since the order was first issued and 2) that the requested change would promote the best interests of the subject child.

  13. What if I have an order of custody, and I want to move to another state?

    Unless the child’s other parent has agreed to the move, a parent who seeks to relocate must first seek permission from the court, especially if the other parent has rights of visitation. This is true even if the parent seeking to move already has sole custody. Visitation is considered an important mutual right of both the child and the non-custodial parent, and the court must first determine whether such a move is in the child’s best interests before permitting a change that has the potential to affect the quality of the relationship between a child and the child’s non-custodial parent.

(August 2013)