Overview
of the Law
How
to Get an Order Protection
Custody
Information
Divorce
Information
Overview
of Custody Information:
(Adapted from www.Womenslaw.org)
What
is custody?
Custody
is the legal responsibility for the care and control of your
child (under 18). When the court issues a custody order, it
will address these two parts of custody: legal and physical.
Legal
custody is the right to make major decisions about your child.
Some types of decisions included in the right of legal custody
are: where your child goes to school, whether your child gets
surgery and what kind of religious training your child receives.
Physical
custody is the actual physical possession and control of a child
(under 18 years old). In other words, it covers who the child
lives with on a day-to-day basis.
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What
options are there for legal custody?
A
judge may give you or the other parent sole legal custody. A
parent with sole legal custody has the right to make major decisions
about the child, while the other parent does not have that right.
A
judge may also give you joint legal custody with the other parent
if both parties agree. In this case, both you and the other
parent would share the same rights and responsibilities to make
decisions affecting your child’s life. This means that both
parents have an input in decisions like where your child goes
to school, what kind of religious training your child receives
and whether your child needs surgery.
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What
options are there for physical custody?
In
New York, if you have physical custody of your child, then your
child lives with you, and not with the other parent. A parent
with primary physical custody is sometimes called a child’s
“primary caretaker,” or “custodial parent”. Generally, the custodial
parent is the person who has responsibility for the everyday
care of your child and the decisions that affect that care.
If
a judge orders shared physical custody, your child will live
with both you and the other parent, with both parents having
frequent contact with the child. The child may or may not spend
equal amounts of time with each parent.
When
there is shared physical custody, both parents share the rights
of making day-to-day decisions about your child and the responsibilities
of caring for your child. Some things that parents with joint
physical custody will both be responsible for include: feeding
your child, bathing your child, arranging medical care for your
child, participating in your child’s education and putting your
child to bed at night.
Here
are some examples of shared physical custody:
- Your
child spends weekdays with you, and weekends with the other
parent
- Your
child spends one month with you and then the month with the
other parent
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Is
there any difference between custody and visitation?
Custody
can include the right to make decisions about your child (legal
custody) and the right to have your child live with you (physical
custody). A parent who does not have physical custody may be
entitled to visitation. This means that even though your child
lives with one parent, your child still gets to spend time with
the other parent.
You
may also share legal custody of your child with the parent who
has visitation. In this case, your child lives with one parent
and spends time with the other parent, but both parents have
the right to make important decisions about your child.
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What
are some advantages and disadvantages of getting a custody order?
There
are many reasons some people choose not to get a custody order
from a court. Some people decide not to get a custody order
because they don’t want to get the courts involved. They may
have an informal agreement that works well for them or may think
going to court will provoke the other parent or if they are
worried that the other parent will receive visitation.
You
should know that getting a custody order can give you:
- The
right to make decisions about your child
- The
right to physical custody of your child (to have your child
live with you)
- If
you decide not to get a custody order, then you and the other
parent have equal rights to both of these things if you were
married or if paternity has been established.(1) The only
way to change the equal right to make decisions about your
child and to have your child live with you is by filing for
custody of your child.
You
do NOT have to have a custody order to file for child support.
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Who
can get custody?
At
least one of the child's parents is entitled to custody, unless
there is clear and compelling evidence that both parents are
“unfit.” If the parents are no longer living or are considered
“unfit”, the judge can award custody to another person or, in
very rare cases, to an agency such as Child Protective Services
, depending on what the judge believes to be in the best interest
of the child.
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Can
a parent who committed violence get custody or visitation?
Maybe.
It is possible that a parent who has committed violence will
get custody or visitation.
Courts
generally presume that it is in the child’s best interest to
see both parents regularly, so they favor providing both parents
with some form of custody or visitation. Courts will only deny
visitation when there is substantial evidence that it would
be harmful to your child.
The
judge has to consider impact of domestic violence on your child
when deciding if there should be visitation. However, it is
possible that even a parent who has physically abused your child
will be given visitation. If a court is unsure about whether
visitation could be harmful to your child, it may award supervised
visitation if it feels that it is in the best interest of your
child. (2)
If
the other parent has abused your child, you should try to convince
the judge that your child is still in danger around the other
parent.
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I
am the child’s relative (other than a parent). Can I get custody
or visitation of the child?
Except
in certain situations, you generally cannot get custody of the
child, but you may be able to get visitation.
Generally,
one or both parents are entitled to custody. It is only when
both parents are dead or “unfit” that the court will give custody
to somebody other than a parent. In this case, the court will
try to decide what is in the best interest of the child to determine
who should get custody.
If
you are the child’s grandparent or sibling, then you may be
able to get visitation. However, it is extremely difficult for
grandparents to get visitation rights. In order to get visitation,
you must show that either:
one
or both of the child’s parents have died, or that fairness requires
that the court give visitation. If either of these is true,
then the court will give you visitation if the judge thinks
that it is in the best interest of the child. To decide whether
visitation is in the best interest of the child, the judge will
decide if s/he thinks there is a consistent, meaningful relationship
between the grandparent/sibling and child. In the case where
the parents discouraged a meaningful relationship, the court
will look at whether the grandparent/sibling tried to make one.
(3)
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How
will a judge make a decision about custody?
A
judge will make a decision about custody based on what s/he
thinks is in your child’s best interest. The judge will look
at any factor that s/he thinks is important to make this decision.
Some of the things a judge will probably look at include:
-
Who
has been the child’s primary caretaker
-
The
quality of each parent’s home environment
-
How
“fit” the judge thinks each parent is
-
Which
parent the child is living with now and how long that arrangement
has been in place
-
Each
parent’s ability to provide emotional and ntellectual support
for your child
-
What
arrangement would be most likely to let your child see both
parents regularly
-
Both
parents’ financial status
-
Which
parent your child wants to live with, if s/he is old enough
to make an informed decision
-
Whether
your child would be separated from any siblings
-
Whether
either parent plans to move away
-
Whether
either parent has been abusive (4)
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If
I have moved away from the house where my children and their
father currently live, will this hurt my chances of gaining
custody?
Perhaps.
A judge will probably consider which parent has been taking
care of the children since you moved out as an important factor
when making a custody decision. Leaving the house where the
children and their father currently live may cause the judge
to favor leaving your children with the other parent.
However,
the judge will examine the reason for leaving the home during
the custody proceeding. If you left your home to escape domestic
violence, make sure the judge knows this. Also, tell the judge
about any prior court orders, such as an Order of Protection.
It is possible that the judge will grant temporary custody to
the abusive parent during the proceedings, but then shift custody
to the other parent for the final decision. (5)
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Do
I need a lawyer?
It
is highly recommended that you get a lawyer to make sure that
your rights are protected. If you cannot afford a lawyer, you
may be able to find sources of free or low-cost legal help on
our NY Links & Resources Page.
If
you plan to file for custody on your own, you may want to visit
www.nycourts.gov/courthelp/index.html, a NY courts website that
provides links to paperwork you need to fill out and file with
the court. Even if you plan on representing yourself, you should
consider having a lawyer review your papers before you file
them.
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In
which state do I file for custody?
Custody
jurisdiction is state law. However, most states (if not all)
have adopted either the Uniform Child Custody Jurisdiction Act
(UCCJA), or the Uniform Child Custody Jurisdiction and Enforcement
Act (UCCJEA). New York has adopted the UCCJEA, which we explain
here.
Under
the UCCJEA, you can only file for custody in the "home
state" of the child. (There are exceptions to the "home
state" rule -- see below.) The "home state" is
the state where your child has lived with a parent or a person
acting as a parent for at least six consecutive months. If your
child is less than 6 months old, then your child’s home state
is the state where s/he has lived since birth. (Leaving the
state for a short period of time does not change your child’s
home state).
If
you and your child recently moved to a new state, generally
you cannot file for custody in that new state until you have
lived there for at least six months. Until then, you or the
other parent can start a custody action in the state where your
child has most recently lived for at least 6 months. There are
some exceptions - please see the next section.
Here
are some examples:
My
children lived in Alabama their whole lives. We just moved
to New York a few weeks ago. In my case, Alabama is my children's
"home state". If I want to file for custody right
now, I will probably need to file in Alabama.
My
children lived in Alabama until we moved to New York 6 months
ago. Because the children have lived in New York for 6 months,
New York is their "home state." I will likely need
to file for custody in New York.
My
children lived in New York until they left to live with their
father in Alabama 2 months ago. Because they haven't lived
in Alabama for 6 months yet, their home state is still New
York. If I want to file for custody, I can most likely file
in New York.
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Are
there exceptions to the "home state" rule?
Yes.
There are exceptions to the home state rule.
In
some cases, you can file for custody in a state where the children
and at least one parent have "significant connections."
Usually, however, you can only do this if there is no home state
or if the home state has agreed to let another state have jurisdiction.
This can be complicated, and if you think this applies to your
situation, please talk to a lawyer in both states about this.
For
a list of legal resources, please see our NY Links and Resources
page.
You
can also file for temporary emergency custody in a state other
than the home state if:
- the
child is present in the state, AND
- the
child has been abandoned, OR
-
it is necessary in an emergency to protect the child because
either the child, a sibling or a parent of the child is subjected
to or threatened with mistreatment or abuse.
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Can
I change the state where the case is being heard?
Maybe.
If you move to another state, you may be able to change the
state where the custody case is being heard. Once you and your
child have been living in a new state for 6 consecutive months,
then the new state may be able to hear your case. If you have
been in the new state for less than 6 months, then you will
probably have to ask the judge that is hearing the case to change
the jurisdiction of your case. This is often complicated, and
as with all custody issues, we recommend that you talk to a
lawyer about this.
To
find legal resources in NY, go to our NY Links and Resources
page. To find legal resources in a state other than NY, select
that state from the scroll-bar at the top, left side of this
page. This will take you to your state's homepage. Then click
on "Links and Resources" to be taken to a list of
legal resources.
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What
are the steps for filing for custody?
It
depends on the particulars of your situation. To find out what
the process will be like for you, please consult a lawyer in
your area. If you cannot afford one, you may be able to get
help from a legal resource on our NY Links and Resources page.
Generally,
if the parents are married, and are seeking a divorce, one or
both of the parents usually files for custody as part of a divorce
action. Divorce actions must be filed in the Supreme Court and
if you cannot afford an attorney, the court will not provide
one for you.
If
the parents are already divorced, the parent who does not have
custody can ask for a change in custody in the county where
the divorce was issued.
If
the parents were never married or are not getting divorced,
either parent can file for custody in the county in which the
child has been living for at least six months.
If
your custody proceeding is not part of a divorce action, then
you will file for custody in Family Court. If you are filing
for custody in Family Court and are too poor to afford a lawyer,
then the court must appoint one for you. (6)
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What
is mediation?
Mediation
uses a neutral third-party, called a mediator, to help the parents
agree on matters relating to custody and visitation of your
child.
If
you are the victim of domestic violence, make sure the judge
knows this. If the judge finds that there has been domestic
violence, then s/he cannot require you to go to mediation.
Generally,
if the court refers you to mediation, then no fees are charged.
(7)
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If
a court denies a request for custody, do they have to explain
why?
Yes,
when a court makes a decision, it needs to make a “finding”
giving you its decision and the reasons for it. The only exception
to this is if you apply for custody and the other parent does
not show up to court. This is called a “default” and the court
can give you custody without making any findings.
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Can
I get financial support for my children and myself?
Yes.
As long as paternity is established, you are entitled to receive
support for your child. But the court makes separate decisions
when awarding support for you and your children, so it is possible
that you may only be able to get support for your children,
and not for yourself.
You
should also know that you can get support for your children
and yourself after getting a custody order, but you don’t need
a custody order to receive support for you or your children.
NOTE:
If you file for support, this may require that you establish
paternity first. You should consult a domestic violence advocate
and/or an attorney before doing this, because establishing paternity
may give the other parent the right to visitation and/or custody
of your child.
Support
for your child: Generally, the court will determine how much
money the other parent will pay to support your child. The court
almost always uses set guidelines in a child support obligation
worksheet to determine how muchsupport you will receive. If
you would like to see all of the factors that go into determining
support, you can visit the NY State Child Support Website.
The
guidelines the court uses involve a very complex formula, but
basically the court looks at both parents’ incomes, your child’s
needs and the custody arrangements. Generally, whether you are
the custodial parent or whether you share joint custody with
the other parent will affect the amount of support. To get a
rough idea of how much support you may receive, you can visit
AllLaw.com's NY child supportcalculator. However, this website
only estimates the amount of support you may get. The amount
of support you receive depends on how much the judge actually
decides to give you.
Support
for yourself: This is also referred to as maintenance or alimony.
If you are getting separated or divorced, a court can award
you temporary or permanent maintenance. In deciding whether
to award you maintenance, a judge will look at many factors.
A few of the things a judge will look at are:
- The
income and property of you and your spouse
- How
long you were married
- The
age and health of you and your spouse
- How
much both parents can earn for a living, and how much education
you both have
- If
you gave up any career opportunities for your spouse. (8)
- If
you were never married, or are not getting separated or divorce,
you will not qualify for maintenance or alimony.
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If
a custody order is already in place, how can I get it changed?
To
change a custody or visitation order that is already in place,
you need to file a motion with the court. Generally, for the
court to change your custody or visitation order, you need to
show that there has been a substantial change in circumstances
since your last hearing and that the new arrangement would be
in the best interest of your child.
To
ask the court for a change in support or visitation, you can
fill out the forms for a “modification of custody” and return
them to the court. You can visit your local courthouse to obtain
copies of all the needed paper work, or you can visit our Download
Court Forms page to find some of the paperwork that you will
need to file. The court clerk may be able to answer some questions
you have about the paper work. However, the court workers cannot
tell you whether you should bring your case to court or what
will happen if you do. If you do not have a lawyer representing
you, you may still want to have a lawyer check over the papers
before you file them. (9)
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If
there is a custody order in place, can I take my kids out of
the state?
It
depends. Generally, whether you can take your child out of the
state for a short period of time depends on what your custody
order says. The custody order may allow you to take your child
out of the state, prohibit you from taking the kids out of the
state, or it may not address this issue at all. The judge may
require that you post a bond or other security conditioned upon
the return of the child to the state.
If
you want to permanently move out of state, then you have to
either get the permission of the other parent or of a judge.
The court will look at your request to move as a request for
a modification of the custody arrangement. Generally, in order
to get permission to move, you must prove to the judge that
moving will be in the best interest of your child. Because the
judge has already decided that your current custody/visitation
arrangement is in the “best interest of your child,” you usually
must prove exceptional circumstances make your move a necessity,
rather than a choice. (10)
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Can
a parent who does not have custody have access to the child’s
records?
Maybe.
Whether a noncustodial parent has access to the child’s school
and medical records depends on what your custody agreement says.
If you would like to limit the other parent’s access to your
child’s records in order to keep your address confidential,
it is important that you tell the judge. (11)
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If
I think that the other parent may abduct my child, is there
anything I can do?
You
should immediately contact a lawyer who can help you try to
prevent abduction. For a list of legal resources, please see
our NY Links & Resources page.
If
you can convince a judge that your concerns are “reasonable”
based on the facts, a court may take steps to prevent the other
parent from abducting your child. If you think that the other
parent may flee the state with the purpose of kidnapping your
child, then there are several things you can do:
- File
a criminal complaint against the other parent (if the other
parent is in the process of fleeing the jurisdiction in violation
of a court order or with the purpose of kidnapping your child)
- Attempt
to get an emergency Temporary Restraining Order from Family
court
- If
you think that the other parent may try to take your child
out of the country, you could ask the court to seize your
child’s passport so s/he cannot leave the country. Also, if
you are seeking custody of your children, you can ask the
judge to include a provision that the non-custodial parent
is not allowed to travel with your child out of the state
or the country. If you already have a custody order, you can
ask the judge to add this requirement to it.
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If
the other parent takes the kids out of state without my permission,
can I charge him with kidnapping?
Probably
not. Generally, whether the other parent take your child out
of the state for a short period of time depends on what your
custody order says. The custody order may allow the other parent
to take your child out of the state, prohibit him/her from taking
the child out of the state, or it may not address this issue
at all. If you have a custody/visitation order in place and
the other parent tries to hide your child in violation of the
custody or visitation order, you can charge him/her with interference
with custody. This is true whether the other parent leaves the
state with your child or not. Unless your custody order forbids
it, the other parent is allowed to temporarily leave the state
with your child as long as the parent has no intent to hide
your child, flee the jurisdiction or deprive you of time with
your child in violation of the custody/visitation order.
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Can
I get temporary custody as a part of an Order of Protection
against the other parent?
You
can ask the court for temporary custody during a proceeding
to get an Order of Protection against the other parent. If the
court grants you a protective order against the other parent,
then the court has the power to award you temporary custody
of and support for your child. However, the court rarely does
this. Even if you are not asking the court for an Order of Protection,
you may be able to get temporary emergency custody of your child
if you prove to the court that it is necessary to protect you
or your child from abuse.
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Can
I get temporary emergency custody?
Maybe.
If NY is your child’s home state, then you can apply for temporary
emergency custody in NY. Even if you would not be able to bring
a permanent custody action in NY because it is not your child’s
“home state”, you may file for temporary emergency custody in
a New York court as long as your child is currently living in
the state.
If
the court feels it is necessary in an emergency to protect you
or your child from mistreatment or abuse, a judge will grant
an order of temporary emergency custody. Judges will usually
only grant temporary emergency custody extreme situations. You
will need to prove to the judge that there is immediate and
present danger of abuse and it is necessary to protect you or
your children.
If
you have strong proof that your child is in danger, a judge
will usually grant temporary emergency custody. Some judges
do not require much proof, while others almost never grant temporary
emergency custody. It is very difficult to get emergency custody
if you do not have a lawyer helping you. Therefore we recommend
that you ask a lawyer for advice in this situation.
