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New York Custody and Visitation

Child custody and parenting decisions can be some of the most challenging parts of a divorce. For unmarried parents, the laws regarding child custody may be even more complicated if, for example, paternity must first be established.

New York Child Custody Laws

There are two types of custody: legal custody and physical custody.

  • Legal custody refers to the right to make major decisions about a child's future, such as schooling, medical treatment, and religious training.
  • Physical custody refers to the physical care and supervision of a child. Physical custody is also called "residential custody," and the parent who has primary physical custody of a child is sometimes referred to as the "primary custodial parent."

Parents may have joint or sole legal custody of children. If parents have joint legal custody, they make major decisions about the child together. If one parent has sole legal custody, only that parent has the right to make major decisions regarding the child.

When parents have joint (shared) physical custody, the child spends an equal amount of time with each parent. If one parent has primary physical custody, that means the child spends the majority of his or her time with that "custodial" parent. The other parent is the "noncustodial" parent and may have a specific parenting schedule for when they spend time with the child. Parenting schedules may vary considerably depending upon a parent's availability, parenting abilities, and the wishes of the child.

It is most common for a child's parent or parents to have custody. However, it is possible for anyone who has a major role in a child's life to ask for custody, including grandparents or other family members. New York courts will generally only grant custody to a non-parent over a parent in "extraordinary circumstances," such as child abuse, abandonment, or other dangers to the child's well-being.

Who Gets Custody of Children After a Divorce?

It is usually much faster, less painful (for the parents and the child), and less expensive for divorcing parents to work out custody decisions with the help of their attorneys, rather than going to court. If the parents can't agree on custody and a parenting schedule, they may need to seek a determination from the divorce court (Supreme Court) or the Family Court in the County where you reside.

New York courts do not favor one parent over another in divorce child custody cases. For example, they won't automatically give a mother custody of children over an equally fit father. Instead, the courts consider the "best interest" of the child when making custody decisions.

In general, New York courts want both parents to have a relationship with their children after a divorce. Therefore, the courts will usually allow the noncustodial parent to have "frequent and meaningful" time with the child, unless there is a compelling reason not to.

Determining the Best Interest of the Child

Each custody case is very fact-specific, because the circumstances of each family and the needs of each child will be different. To determine what would be in the best interest of a child, the court will consider a wide variety of factors such as:

  • Who has been the child's primary caretaker in the past
  • The "fitness" of each parent, including their ability to provide a stable home, their employment, and their physical and mental health
  • The home environment
  • The parents' work schedules and plans for child care
  • The existence of siblings and the desire to keep siblings together
  • The child's own preferences, if the child is old enough
  • Each parent's ability to cooperate and encourage the child to have a relationship with the other parent
  • Whether there has been a history of domestic violence or abuse

At a custody hearing, the judge gathers the information he or she needs to make a decision regarding what is in the best interests of the child. This may include the parents' testimony, witness testimony, caseworker or psychologist reports, and a private discussion between the judge and the child regarding the child's preferences.

Who Gets Custody if the Parents are Unmarried?

New York law can treat married and unmarried parents differently. If a child is born to a married couple, generally the law assumes that both parents have an equal legal right to custody.

However, if the mother and father were not married to each other at the time the child was born, the biological father may not be automatically considered the child's legal parent. In this situation, the biological father can establish his legal right to custody of a child by:

  • Signing an Acknowledgement of Paternity form. This is a legal form signed by both the mother and father, naming the man as the father of the child. The form is usually signed at the hospital when the child is born, though it can be signed at other times.
  • Starting a paternity case in Family Court to get an Order of Filiation. An Order of Filiation is a court order naming the man as the father. If the mother and father agree on who the child's father is, they can get an Order of Filiation "on consent" with no DNA testing required. If there is disagreement about who the father is, the court may order DNA testing.

After an Acknowledgement of Paternity form is signed or an Order of Filiation is entered, an unmarried father has many of the same parental rights and responsibilities as a married father. This means he has a legal right to ask for custody and visitation, and he will also be responsible for paying child support to the child's custodial parent.

Experienced New York Child Custody Attorney

If you are considering a divorce or a legal separation, or if you are an unmarried parent struggling with a custody matter, contact Frost & Kavanaugh to schedule a consultation appointment. We offer reasonable rates for Family Court matters. We charge a modest consultation fee, but that fee is applied towards your retainer fee if you choose to hire us.

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