New York
Child Custody Law

New York Child Custody Guide :: Table of Contents

What Is Child Custody?
Child Custody Factors Table
New York Child Custody Law Summary
How Child Custody Is Decided In New York
New York Child Custody Law Text

Child Custody General Information - What Is Child Custody?

Child custody is defined as the guardianship over a child, which covers both physical custody and legal custody. In a child custody dispute the court may award joint custody to both parents or sole custody to a single parent.

Child custody cases in New York can be either contested and resolved by court order, or noncontested and defined in a child custody agreement between the parents. A custody agreement or order will legally determine, at minimum, the following things:

Where the child lives (physical custody)
Who is involved in making parenting decisions (legal custody)
How the visitation schedule with non-custodial parents or relatives is arranged

This page describes how a contested child custody case is handled in the New York court system, and what factors are used to determine which parent gets custody.

New York Custody Court Considerations Table

Statutory Factors
Childs Wishes
Joint Custody Authorized
Favor Joint Custody
Cooperative Parent
Domestic Violence
Attorney or Guardian Ad Litem For Child

New York Child Custody Law Summary

After a breakup or divorce in New York, couples with children must come to a child custody agreement that describes which parent the children will live with, how visitation will be scheduled, and how the non-custodial parent will pay child support.

Some of the factors considered by New York in child custody cases include the child's wishes and any history of domestic violence.

What Happens if Domestic Abuse is Filed in a Custody Case?

If either party claims evidence of domestic abuse, the court must consider the effect of domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a decision.

When Would the Court Need Verification?

In any action or proceeding brought:

to annul a marriage

for a separation

for a divorce

to obtain the custody of or right to visitation with any child under a marriage

The court will require verification of the status with respect to the child's custody, including any prior orders, and shall enter orders for custody and support to the court's discretion, having considered all circumstances and evidence.

What if There is Evidence of Domestic Abuse?

If it is alleged that the child has been abused and is supported by evidence, then the court with consider it in determining the visitation arrangement in the best interest of the child.

The court will not place a child in the custody of a parent who is a risk of harm to the child, and will state on the order specifically how the evidence was factored into the decision.

New York Child Custody Factors - How Is Child Custody Decided In New York?

If the parents are on amicable terms they may agree to custody terms in a parenting agreement between themselves, or via a mediator. If child custody is disputed, however, they will have to receive a child custody order from a New York judge, who will attempt to make a custody decision that is in the "best interests of the child".

In the state of New York, a number of factors are taken into account by the courts when determining who gets child custody. This section describes New York's custody factors, considerations, and presumptions when evaluating a custody order.

Is there a set list of statutory factors for calculating child custody in the state of New York?

New York does not have a defined list of factors for the court to consider when determing a custody order. This means that judges have significant flexibility on a case-by-case basis when determining a custody arrangement between two parents.

Do judges in the state of New York favor joint custody?

Judges in New York generally do not grant joint custody of a child, instead appointing one custodial parent. However, joint custody agreements may be arranged between both parents.

Courts in New York do not have a presumption in favor joint custody orders when evaluating child custody. The judge will evaluate the specifics of the custody dispute to determine what custody arrangement is in the best interests of the child.

Do New York courts encourage parents to cooperate together to raise the child?

It is not particularly encouraged that the parents cooperative together to raise the child.

Are the child's wishes considered when determining custody in the state of New York?

In New York, the court does consider the child's reasonable wishes when determining which parent wins custody. The judge may take the child's age, maturity, and judgement into consideration when considering the child's custody preference.

Do New York courts consider domestic violence when determining custody?

New York has laws that explicitly permit the consideration of domestic violence in conjunction with child custody. This may mean that domestic violence is a statutory factor in custody determinations, that the court has a presumption against custody for abusers, or that special procedural considerations are imposed in cases involving domestic violence.

Do the courts in the state of New York have the right to hire an attorney or Guardian Ad Litem to represent the child?

New York has statutory authority for appointment of a guardian ad litem or attorney specifically to represent the child in a custody case. This person advocates for the best interest of the child, and is tasked with investigating the family situation and advising the court what custody situation would be in the best interests of the child.

| State Law Official Text

Section(s):
N.Y. DOM. REL. LAW § 240

1. (a) In any action or proceeding brought

(1) to annul a marriage or to declare the nullity of a void marriage, or

(2) for a separation, or

(3) for a divorce, or

(4) to obtain, by a writ of habeas corpus or by petition and order to show cause, the custody of or right to visitation with any child of a marriage, the court shall require verification of the status of any child of the marriage with respect to such child's custody and support, including any prior orders, and shall enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child and subject to the provisions of subdivision one-c of this section. Where either party to an action concerning custody of or a right to visitation with a child alleges in a sworn petition or complaint or sworn answer, cross-petition, counterclaim or other sworn responsive pleading that the other party has committed an act of domestic violence against the party making the allegation or a family or household member of either party, as such family or household member is defined in article eight of the family court act, and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to this section and state on the record how such findings, facts and circumstances factored into the direction.

If a parent makes a good faith allegation based on a reasonable belief supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reasonable belief to protect the child or seek treatment for the child, then that parent shall not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation or contact, based solely on that belief or the reasonable actions taken based on that belief. If an allegation that a child is abused is supported by a preponderance of the evidence, then the court shall consider such evidence of abuse in determining the visitation arrangement that is in the best interest of the child, and the court shall not place a child in the custody of a parent who presents a substantial risk of harm to that child, and shall state on the record how such findings were factored into the determination. Where a proceeding filed pursuant to article ten or ten-A of the family court act is pending at the same time as a proceeding brought in the supreme court involving the custody of, or right to visitation with, any child of a marriage, the court presiding over the proceeding under article ten or ten-A of the family court act may jointly hear the dispositional hearing on the petition under article ten or the permanency hearing under article ten-A of the family court act and, upon referral from the supreme court, the hearing to resolve the matter of custody or visitation in the proceeding pending in the supreme court; provided however, the court must determine custody or visitation in accordance with the terms of this section.