Custody and Visitation Rights in New York

Legal custody and physical custody

New York uses the words custody and visitation. The court system's CourtHelp pages describe two parts of custody:

• Legal custody is the right to make important decisions about a child's care, such as medical care or religious upbringing. With joint legal custody, the parents make major decisions together. With sole legal custody, one parent makes them.
• Physical custody, also called residential custody, is responsibility for the child's day to day care and supervision. With sole physical custody, the child lives with that person more than half the time, and the other parent has visitation.

CourtHelp also states that if there is no court order, both parents have equal rights to physical and legal custody, and that a New York court can make custody and visitation orders only until the child is 18.

No parent starts ahead

Domestic Relations Law § 240(1)(a) and § 70(a) both say that there shall be no prima facie right to the custody of the child in either parent. The court decides custody and support as justice requires, having regard to the circumstances of the case and of the parties and to the best interests of the child.

What best interests means in practice

There is no single statutory checklist. CourtHelp says the child's health and safety are the paramount concerns, and lists things a judge may look at, such as:

• Which parent has been the main caregiver
• Each parent's parenting skills, strengths and weaknesses, and ability to meet any special needs
• The mental and physical health of the parents
• Whether there has been domestic violence in the family
• Each parent's work schedule and child care plans
• The child's relationships with siblings and other family members
• What the child wants, depending on the child's age
• Each parent's ability to cooperate and to encourage a relationship with the other parent, when it is safe to do so

Safety checks before any custody order

Family Court Act § 651(e) requires the court, before it issues any permanent or initial temporary order of custody or visitation, to review certain records, including orders of protection and the sex offender registry.

Parents who were never married

The custody petition, GF-17, asks how the child's father is legally established: by marriage to the mother at conception or birth, an order of filiation, or a signed Acknowledgment of Parentage. It also has a box to say the father has not been legally established. For child support, CourtHelp says that when the parents were not married, an Acknowledgment of Paternity or an Order of Filiation is needed to establish paternity.

Grandparents and other non-parents

Family Court Act § 651(b) lets the Family Court hear applications by grandparents for visitation or custody. CourtHelp explains that anyone with an important role in a child's life may ask for custody, but when the dispute is between a parent and a non-parent, the judge first considers whether there are extraordinary circumstances. Only if there are does the judge go on to the best interests of the child. CourtHelp gives examples such as a parent's neglect or abuse, abandonment, or a parent being in prison.