What To Expect During Your New York Child Custody Case

What is Child Custody In New York?

There are two types of custody in New York: Legal custody and physical custody. The parties can have joint custody, one party can have sole custody or there can be a combination i.e mom has sole physical but the parties share legal custody.

Physical Custody

The physical custodian is who the child primarily lives with and typically has the responsibility for making sure that the child’s day-to-day needs are met.

Legal Custody

Legal custody means you make major decisions for the child. Decisions are divided into three spheres; medical, educational, and religious.

For joint legal custody to work, the parents have to be able to communicate. Typically parties have to agree to joint custody as most judges won't order it after a trial.

Who Is Entitled To Custody?

Both parents have the right to custody of their children and parents right to custody supersedes any third parties.

If the parents are married, the father automatically has the right to seek custody. But if the parents are not married, paternity must be established first. This is accomplished by the father signing an acknowledgment of paternity or paternity testing.

Non-parent custody is only granted in “extraordinary circumstances.” Typically neglect, unfitness, or abandonment is required to prove that it is in the best interest of the child for someone other than the natural parents to have custody. It can be a difficult process so hiring an experienced New York family law attorney is the best way to get the outcome you want.

How do you file for custody?

In a New York Divorce action, custody will be one of the primary issues discussed. You will include it as an issue in your Summons and Complaint and let the court know it is an issue during your first court appearance, the Preliminary Conference.

Divorces are filed in the Supreme Court located in your county of residence. It is highly recommended that you hire an attorney when dealing with custody in a divorce case.

For cases that are not divorces, you will file a petition for Custody in the Family Court located in your County of residence. These cases are easier to handle without an attorney, but you may get a better outcome if you hire one.

When filing the petition, you will include your reasons for requesting custody or for modifying custody. You will receive a court date (return date) and receive a summons to serve on the other party.

What happens at the first court appearance for child custody in Family Court?

The first appearance is primarily for the court to see if the respondent was properly served. You will need to bring a copy of the notarized Affidavit of Service, proving you served the summons.

Once that occurs the judge or the judge’s court attorney will speak to both sides to see what their positions are and see if the case can be settled.

Settlement can only occur if both parties agree to resolve the matter. If the parties cannot reach an agreement, the judge will probably set a temporary visitation schedule and adjourn the case to another day. Be prepared for a couple of court appearances before a trial date is set.

If the child is old enough to communicate the Judge will likely appoint them their own attorney. The law guardian will investigate the case and may try to help the parties reach a settlement. They usually interview each party separately and interviews the child if they are old enough. Their job is to represent the interest of the children and their position carries a lot of weight with the judge. It is very important that you fully cooperate with them and allow your children to speak for themselves.

The judge may also Order the Administration for Children’s Services (ACS) to perform a Court-Ordered Investigation (COI). ACS will send a caseworker to the homes of both parties to interview the parties and the children and investigate the homes to see if they are appropriate for children. The caseworker will then write a report that will be submitted to the judge.

Can I get a free attorney to represent me in my child custody case?

If the court finds that you are indigent, you can ask that an attorney is appointed to you. You have to provide the court with proof of income in order to qualify.

You also have the right to represent yourself or hire a private attorney.

How Does The Court Decide Who Gets Custody?

The primary factor considered by judges when deciding custody between two parents is the “best interests” of the child.  Some things Judges may consider:

• Which parent has been the primary caretaker of the child
• The relative fitness of each parent
• History of domestic violence
• The wishes of the child
• The ability of one parent to foster a relationship with the other parent.

This is very subjective and outcomes can vary by judge. That is why it is always a good idea to at least attempt a settlement instead of leaving the decision in the hands of a judge who may or may not have biases. What you think is in your child's best interest may be very different than what the judge thinks.

What happens at a child custody trial?

The length of a custody trial depends on the complexity of the case and the number of witnesses that will be called. It can be a few hours to a week or more. And depending on the judge, trial days may not be back to back.

The petitioner presents their case first by testifying and calling witnesses. The respondent will have an opportunity to cross-examine before testifying and calling their own witnesses.

Depending on the case, the judge may ask to speak to the children in their chambers - called in camera. They rarely allow children to testify.

Can you modify a child custody order?

In order to change or modify an existing custody order, you have to prove a substantial change in circumstances. This is not always easy to do. What you consider a substantial change may be much different then what a judge thinks. It’s a good idea to at least consult with an attorney to see if there has been enough of a change in circumstances to petition the court for a modification.

Custody trials in Family and Supreme court can be a long and daunting process. In order to make the best decisions and best protect your children, it is a good idea to consult with an experienced New York Family Law attorney.