Child Custody Laws in New York 2026: Complete Guide

New York child custody law is governed by the principle of "best interests of the child." Understanding the types of custody, New York's best interest factors, and the court process is essential for parents navigating divorce, separation, or custody disputes in New York.

Types of Child Custody in New York

New York recognizes two main categories of custody under Domestic Relations Law § 240:

Legal Custody

Legal custody is the right to make major decisions affecting the child's welfare, including:

• Education (school selection, special education, tutoring)
• Healthcare (medical treatment, therapy, medications, non-emergency procedures)
• Religion (religious upbringing and activities)
• Extracurricular activities (sports, arts, camps)

Joint Legal Custody: Both parents share decision-making authority (increasingly common)

Sole Legal Custody: One parent has exclusive authority to make major decisions

Physical Custody (Residential Custody)

Physical custody (also called "residential custody" in New York) determines where the child lives:

• Primary Physical Custody: Child resides primarily with one parent ("custodial parent")
• Joint Physical Custody: Child spends substantial time with both parents (not necessarily 50/50)
• Sole Physical Custody: Child resides with one parent, other parent may have visitation/parenting time

Visitation (Parenting Time)

The non-custodial parent typically receives visitation or parenting time:

• Reasonable Visitation: Flexible schedule determined by parents
• Fixed Visitation: Specific schedule spelled out in court order
• Supervised Visitation: Visits monitored by third party due to safety concerns
• Therapeutic Visitation: Visits facilitated by mental health professional

New York's Best Interest Factors

New York courts determine custody based on "best interests of the child." While not codified in a statutory list like some states, New York case law establishes key factors (Eschbach v. Eschbach, other precedents):

Primary Factors Courts Consider

1. Each parent's ability to provide for child's emotional and intellectual development
2. Each parent's ability to provide for child's physical needs and safety
3. Quality of home environment each parent can provide
4. Parental fitness (mental and physical health, substance abuse issues)
5. History of domestic violence or abuse by either parent
6. Each parent's ability to cooperate and communicate regarding child
7. Each parent's willingness to foster relationship with other parent (parental alienation)
8. Parental work schedules and availability to care for child
9. Stability and continuity in child's education and community
10. Sibling relationships (keeping siblings together when possible)
11. Child's relationship with each parent and other family members
12. Child's preference (if child is of sufficient age and maturity)
13. Each parent's past performance as primary caregiver
14. Geographic proximity of parents' homes
15. Any other factor relevant to child's best interest

Child's Preference in New York

New York courts may consider a child's stated preference:

Key Points

• No specific age: New York law does not set a minimum age
• Age and maturity matter: Older children's preferences carry more weight (typically 12+)
• Lincoln hearing: Judge may interview child privately in chambers to hear preference
• Not controlling: Child's preference is just one factor among many
• Reasons examined: Court considers WHY child has preference
• Parental influence: Preference carries less weight if result of manipulation

Lincoln Hearings

Named from Lincoln v. Lincoln, these are in-chambers interviews:

• Judge speaks with child privately (attorneys usually not present)
• Child can express wishes and concerns freely
• Transcript sealed to protect child's privacy
• Generally for children age 10 and older
• Not mandatory - judge's discretion

Obtaining a Custody Order

Jurisdiction - Where to File

New York courts have jurisdiction if:

• New York is child's "home state" (lived in NY for 6+ months), OR
• Child has significant connections to New York, OR
• Emergency situation requiring protection

UCCJEA: New York follows Uniform Child Custody Jurisdiction and Enforcement Act

Filing Process - Divorce Cases

If filing during divorce:

1. File Divorce Petition: Include custody request in divorce papers
2. Serve Other Parent: Personal service by process server
3. Preliminary Conference: Court schedules conference to discuss issues
4. Temporary Orders: Court may issue temporary custody pending trial
5. Discovery: Exchange financial information and evidence
6. Settlement Negotiations: Most cases settle without trial
7. Trial: If no settlement, judge decides custody after hearing

Filing Process - Non-Divorce Custody Cases

If parents were never married or custody dispute outside divorce:

1. File Custody Petition: In Family Court (not Supreme Court)
2. Venue: County where child lives
3. Filing Fee: $0 in Family Court (no fee for custody)
4. Serve Other Parent: Sheriff or process server
5. Court Hearings: May include temporary hearing, court-ordered investigation, final hearing

Supreme Court vs. Family Court

Joint Custody in New York

New York courts increasingly favor joint legal custody when appropriate:

Joint Legal Custody

Parents share major decision-making:

• When Granted: Parents can communicate and cooperate effectively
• Requires: Ability to work together on major decisions
• Does NOT Require: Parents to be friendly, just able to co-parent
• High-Conflict Cases: May not be appropriate if parents cannot communicate

Joint Physical Custody

Child spends substantial time with both parents:

• Not necessarily 50/50: Can be 60/40, 70/30, etc.
• Factors favoring joint physical custody:
  • Both parents involved and fit
  • Parents live in reasonable proximity
  • Child benefits from time with both parents
  • Schedule practical for child's school and activities

Common Joint Physical Custody Schedules

Week On/Week Off (50/50)

• Child alternates weeks between parents
• Good for: Older children, cooperative parents, parents live nearby

2-2-5-5 Schedule

• Parent A: Monday-Tuesday, then Friday-Sunday next week
• Parent B: Wednesday-Thursday, then Friday-Sunday opposite week
• Good for: Younger children (more frequent contact)

5-2-2-5 Schedule

• Parent A: Mon-Fri, Parent B: Sat-Sun, then flips next week
• Each parent gets 5-day block then 2-day block

3-4-4-3 Schedule

• Parent A: Mon-Wed (3 days), then Thu-Sun (4 days) next week
• Parent B: Thu-Sun (4 days), then Mon-Wed (3 days) next week
• Good for: Balancing work schedules

Relocation with Children

New York has strict relocation requirements established by Tropea v. Tropea:

When Relocation Permission Required

• Moving out of state
• Moving significant distance within New York (typically 50+ miles)
• Any move that substantially affects other parent's visitation

Relocation Procedure

Step 1: Seek Other Parent's Consent

• Provide written notice of proposed move (address, date, reasons)
• If other parent consents, submit stipulation to court for approval

Step 2: If No Consent, File Motion

• File petition/motion to relocate with court
• Provide detailed reasons for move
• Propose revised parenting time schedule

Step 3: Court Hearing

• Judge holds hearing on relocation request
• Both parents present evidence
• Court applies Tropea factors

Tropea Factors for Relocation

New York courts consider:

• Each parent's reasons for seeking or opposing relocation
• Quality of relationships between child and each parent
• Impact on child's relationship with non-relocating parent
• Feasibility of preserving relationship through substitute visitation arrangements
• Child's preference (if of sufficient age and maturity)
• Whether relocation will enhance quality of life for child and relocating parent
• Whether motives are genuine (not to frustrate visitation)
• Whether non-relocating parent's opposition is to secure financial advantage

Modifying Custody Orders

Standard for Modification

To modify existing custody order, must show:

• Material change in circumstances since original order, AND
• Modification serves best interest of child

Examples of Material Change

• Relocation of custodial parent
• Parent's substance abuse or mental health crisis
• Domestic violence or child abuse
• Custodial parent's interference with visitation
• Change in child's needs (health, education, development)
• Parent's incarceration
• Significant change in child's preference (older child)
• Custodial parent's inability to care for child
• New spouse creating unsafe environment

Modification Process

1. File Modification Petition: In court that issued original order
2. Serve Other Parent: With petition and supporting papers
3. Court Hearing: Present evidence of changed circumstances
4. Court Decision: Judge applies best interest factors to current circumstances

Enforcing Custody Orders

Violation of Custody Order

If other parent violates custody order, you can file:

• Violation Petition: Court can hold violating parent in contempt
• Remedies Include:
  • Make-up visitation time
  • Modification of custody in favor of compliant parent
  • Fines
  • Attorney fees
  • In extreme cases, incarceration for contempt

Parental Kidnapping

Under New York Penal Law § 135.45, custodial interference is a crime:

• Taking child in violation of custody order
• Keeping child beyond visitation time with intent to interfere
• Removing child from New York without permission
• Class E Felony: Up to 4 years in prison

Interstate Custody Violations

If parent takes child to another state:

• File petition under UCCJEA to enforce New York order
• New York order remains valid in other states
• May involve federal Parental Kidnapping Prevention Act
• Consult attorney immediately

Grandparent Visitation Rights

New York allows grandparents to seek visitation under Domestic Relations Law § 72:

When Grandparents Can Seek Visitation

• One or both parents deceased
• OR circumstances showing equity requires visitation

Burden of Proof

Grandparents must show:

• Visitation is in child's best interest, AND
• Overcome presumption that fit parent acts in child's best interest

Factors Court Considers

• Nature and extent of grandparent-grandchild relationship
• Time grandparent and grandchild lived together
• Parents' reasons for denying visitation
• Impact on child's relationship with parents
• Any history of physical, emotional, or sexual abuse by grandparent

Custody and Domestic Violence

New York takes domestic violence very seriously in custody determinations:

Orders of Protection

• Can be issued in criminal or family court
• May include temporary custody provisions
• Can prohibit contact or require supervised visitation
• Violation is crime (contempt of court)

Impact on Custody

Domestic violence is major factor against abuser:

• Presumption: Awarding custody to domestic violence perpetrator NOT in child's best interest
• Supervised Visitation: May be required for safety
• Sole Custody: Victim parent more likely to receive sole custody
• Evidence: Police reports, medical records, orders of protection all relevant

Custody Evaluations and Investigations

New York courts may order forensic custody evaluations:

When Ordered

• High-conflict custody disputes
• Allegations of abuse, neglect, or substance abuse
• Mental health concerns about parent or child
• Complex parenting time issues
• Parental alienation concerns

What Evaluator Does

• Psychological testing of parents and children
• Interviews with parents, children, and collateral sources
• Home visits to both parents' residences
• Review of school, medical, mental health records
• Observation of parent-child interactions
• Written report with recommendations to court

Attorney for the Child (AFC)

New York may appoint attorney to represent child's interests:

• Independent attorney who advocates for child
• Required in contested custody cases in some counties
• Meets with child and investigates circumstances
• Makes recommendations to court
• Cost typically split between parents or paid by court

Costs and Fees

Custody for Unmarried Parents

Special considerations for parents who were never married:

Establishing Paternity First

Father must establish paternity before seeking custody:

• Acknowledgment of Paternity: Both parents sign at hospital or later
• Paternity Petition: File in Family Court for DNA testing and court order
• Until Paternity Established: Unwed father has NO legal rights to child

Custody Rights After Paternity Established

• Father can seek custody or visitation
• Same best interest factors apply
• No preference for mother or father
• Court focuses on child's best interest

Frequently Asked Questions

At what age can a child choose which parent to live with in New York?

New York has no specific age. A child cannot legally decide until age 18 (adult). However, courts give increasing weight to a mature child's preference, typically around age 12-14 and older. The judge may conduct a Lincoln hearing (private interview) to hear the child's wishes. The child's preference is one factor among many in the best interest analysis.

Does New York favor mothers in custody cases?

No. New York law is gender-neutral and does not favor mothers or fathers. The "tender years doctrine" that favored mothers for young children has been rejected. Courts must evaluate both parents equally based on best interest factors. Either parent can be awarded primary custody based on the evidence.

Can I move out of New York with my child?

Not without other parent's consent or court permission. If you have custody and want to relocate out of state (or significant distance within New York), you must either get other parent's written consent or file a petition and get court approval. Moving without permission can result in loss of custody, contempt charges, and even criminal charges for custodial interference.

How much does a custody case cost in New York?

Family Court custody petitions have no filing fee. Divorce filing fees range $210-$335. Attorney fees for contested custody cases typically range $5,000-$50,000+ depending on complexity, length of litigation, need for experts, and whether trial is necessary. Custody evaluations can cost $3,000-$15,000. Many cases settle through negotiation, reducing costs significantly.

What if my ex refuses to follow the custody order?

File a violation petition in the court that issued the order. The court can hold the violating parent in contempt, award make-up parenting time, modify custody, order payment of attorney fees, impose fines, or in severe cases, order incarceration. Document all violations with dates, times, and details. Under New York law, custodial interference is also a crime (Penal Law § 135.45).

Can my child refuse to visit the other parent?

A child cannot unilaterally refuse court-ordered visitation. Custodial parent has obligation to encourage and facilitate visitation. Allowing child to refuse can result in contempt charges against custodial parent. If child has legitimate safety concerns, document them and file emergency petition. Otherwise, consider counseling or modification petition. Courts take visitation interference very seriously.

Does joint custody mean no child support in New York?

No. Joint legal custody or even joint physical custody does not automatically eliminate child support. New York calculates child support based on parents' incomes and parenting time percentage. Even with 50/50 custody, the higher-earning parent typically pays support. The Child Support Standards Act provides the calculation formula.