If you’re considering a divorce in New York and you have children, it will be important for you to understand the legality around child custody. To that end, I’ve compiled an overview of the basics. For a more in-depth look at your particular situation, please feel free to contact me to discuss.
Child Custody Law in New York State
For New York courts to have jurisdiction on your case, the child must have lived in New York for the past six months. If the child is younger than six months, he or she must have been born in New York (except under extenuating circumstances).
Neither parent has a preferred right to custody of their children in New York. If there is no custody order, either parent can keep the child with him or her. If the case goes to court, the custody decision must be made in the “best interests of the child.”
Either parent can apply for custody in Family Court. You can attempt to get custody in Supreme Court after divorce proceedings have begun, but you may only have one case ongoing at a time.
The status of “primary caretaker” of the child is likely to be important in making decisions regarding custody.
The parent who has physical custody of the child when the custody application is made to the court may have an advantage in the courts.
The court can consider where the child wants to live, but does not have to follow the child's wishes. The older a child is, the more a court will consider his or her wishes.
Parents may share joint legal custody in New York. The court usually will give custody to only one parent if parents are not able to cooperate.
Custody or visitation can be changed if there is a significant change of circumstances that affect the child’s interests.
If the parent who has custody of the child wants to move, he or she may need to get permission from the court. Alternately, the other parent can apply to the court for an order that prevents the move or changes visitation.
If the parents were never married, and the parents never signed an “Acknowledgment of Paternity,” the father has no custody or visitation rights. To apply for custody and visitation, he must first legally establish paternity.
If you have a custody order and the other parent takes the child from you or won’t return the child from a visit then the other parent could be arrested for kidnapping. He or she could also be charged with interfering with your custody.
The parent who does not have custody of the child can almost always get “frequent and meaningful” visitation. Visitation rights will only be denied if visitation is deemed to be harmful to the child in some way.
A lack of payment of child support is not sufficient means to refuse visitation. It can, however, lead to the non-paying parent to go to jail.
Court-ordered visitation cannot be refused unless it is believed that it would put your child in danger.
Half-siblings and grandparents can apply for visitation rights, although the court isn’t obligated to grant these.
While this covers the basics of New York child custody law, it’s highly likely that you will benefit by seeking legal counsel on these matters. If you’d like to discuss your particular situation, please feel free to contact me.
James J. Sexton