How To Get Legal Custody in New York

If you can make it through a New York child custody case, you can make it anywhere.

Whether you’re a parent going through a divorce or a relative stepping up for a child’s well-being, this guide breaks down the legal process in plain, no-nonsense language. From the different types of custody to how to file and what actually happens in court, we’ll walk you through what to expect—step by step. Because in a city (and state) that never sleeps, understanding your rights is power.

What is Legal Custody vs. Physical Custody: What’s the Difference?

Legal custody means the right to make major decisions about a child’s life—like education, healthcare, and religion. Physical custody (or residential custody) refers to where the child lives and who provides day-to-day care. The parent the child lives with most is called the custodial parent; the other usually has visitation rights.

Example: One parent may have primary physical custody while both share legal custody—meaning the child lives with one parent, but both make major decisions together. In some cases, physical custody is split, or one parent has sole legal and physical custody, depending on what’s best for the child.

Filing for Custody in New York: Step-by-Step

If you need to file for custody of a child in New York State, here is a step-by-step guide.

1. Choose the Right Court: File in the Supreme Court if custody is part of a divorce. File in Family Court if you’re unmarried or not filing for divorce. Family Court handles custody, visitation, and child support, but not divorces. You can’t have custody cases pending in both courts—Family Court will defer to Supreme Court if a divorce is underway.
2. Complete the Petition: Use Form GF-17 (Petition for Custody or Visitation) in Family Court. Include details about both parents, the child’s living situation, and why your proposed arrangement is best. Relatives must also show “extraordinary circumstances” justifying their request.
3. File the Forms: Submit your paperwork to the court in the county where the child has lived for the past six months. Family Court filings are free. Supreme Court (divorce) filings require a fee (approx. $210). You’ll receive a case number and stamped copies—save them.
4. Serve the Other Parent: A third party (age 18+, not involved in the case) must deliver the papers to the other parent. You cannot serve them yourself. The server completes an Affidavit of Service and files it with the court. Proper service must occur at least 8 days before the first hearing. Ask the clerk for help if unsure, especially in domestic violence situations where confidentiality or a protective order may be needed.
5. Prepare for Your Hearing: Gather documents (school records, proposed parenting plan, etc.) and legal advice if needed. If you qualify, the court will assign a free attorney. If both parents agree on custody, the judge can issue a consent order without a trial. Some courts offer free mediation—though not if domestic violence is involved.

How is Legal Custody Decided?

All child custody rulings are made in the best interest of the child. Because of this standard, a judge must take the following factors into consideration while determining custody:

• The history and pattern of previous decision making
• The strengths and weaknesses of each party’s parenting skills
• The amount of time each parent has spent with the child, and how present each parent has been in the child’s upbringing
• How willing the parents are to cooperate with each other (this determines whether legal custody will be joint or sole)

Custody in Uncontested vs. Contested Divorce Cases

If you are going through a divorce in New York, custody will be one of the issues decided during the divorce process. The approach to custody can differ depending on whether the divorce is uncontested or contested:

Uncontested Divorce (When Parents Agree)

In an uncontested divorce, both parents agree on all terms, including custody and visitation. They work out a parenting plan—often through lawyers or mediation—and submit it to the court. If the judge finds the plan is in the child’s best interest, it’s approved without a trial and included in the final divorce order. Some New York counties even offer joint filing options when there’s full agreement. As long as the arrangement supports the child’s well-being, courts rarely reject it.

Contested Divorce (When Parents Disagree)

In a contested divorce, parents disagree—often about custody. The court may encourage mediation or issue temporary custody orders, but if no agreement is reached, the case goes to trial. Both sides can present evidence, and a judge may appoint an Attorney for the Child or order a custody evaluation. The judge then decides based on the child’s best interests. Contested custody battles are often time-consuming, stressful, and expensive, which is why settlement is encouraged whenever possible.

Problems with Joint Legal Custody

Parents should be able to work together and make unified decisions in their child’s best interest, unfortunately, this isn’t always the case. Because of this, judges are hesitant to proceed with joint legal custody if the parents can’t get along. Parents do have options if they are unable to reach a compromise on which school the child should attend, or who their primary care doctor should be. Litigants can request mediation through the court, and have a judge decide for them. Alternatively, they may petition the court for a change of legal custody.

Factors Courts Consider in Custody Decisions

Here are some key factors that courts consider when determining the “best interests of the child” in custody cases:

1. Primary Caretaker Role: The court looks at who has been the child’s main caregiver—handling daily needs like meals, school, and routines. Courts favor consistency and stability.
2. Home Environment: Judges evaluate each parent’s home for safety, cleanliness, stability, and whether it offers a nurturing space for the child.
3. Ability to Care for the Child: This includes each parent’s physical, emotional, and financial fitness. Courts consider work schedules, mental health, substance abuse history, and the ability to support the child’s development.
4. Relationship with Each Parent: Courts assess how close the child is to each parent and how involved each has been. Disrupting a stable, existing relationship is generally avoided.
5. Child’s Wishes: If mature enough, a child’s preference may be considered—especially over age 12—but it’s not the deciding factor. The Attorney for the Child usually communicates this to the court.
6. Keeping Siblings Together: Courts prefer not to separate siblings, valuing the emotional bond between them unless it’s clearly in the child’s best interest.
7. Domestic Violence: A history of abuse—toward the child or other parent—strongly weighs against custody. Courts prioritize the child’s physical and emotional safety.
8. Parental Cooperation: Judges favor parents who support the child’s relationship with the other parent. Undermining or refusing to co-parent can hurt a custody claim.
9. Other Relevant Factors: Courts can consider anything affecting the child’s well-being, such as special needs, new family dynamics, or unusual circumstances.

Note for Relatives (Non-Parents)

Relatives like grandparents or aunts/uncles must first prove extraordinary circumstances before the court will even consider granting them custody over a parent. This high standard protects a parent’s fundamental right to raise their child. Examples include abuse, neglect, domestic violence, substance abuse, abandonment, or the child living with the relative for a significant time (e.g., two years or more for grandparents). If the court finds extraordinary circumstances, it will then apply the best interest of the child test. Without that proof, the parent keeps custody by default.

When a Parent Is Unfit or Absent

Sometimes custody or visitation decisions hinge on the fact that one parent is unfit or has been largely absent from the child’s life. Here’s how New York courts handle those situations:

• Unfit Parent: A parent may be deemed unfit due to abuse, neglect, substance use, mental illness, or domestic violence. If the parent poses a risk or can’t meet basic care standards, the court may award sole custody to the other parent. Visitation may still be allowed, but often with restrictions like supervision. Serious claims require strong evidence—accusations alone aren’t enough.
• Absent Parent: If one parent has little or no involvement, the active parent can usually obtain custody—especially if the other fails to appear in court. If the absent parent returns later, the court may allow limited, gradual visitation if it’s safe. Long-term abandonment may even lead to loss of parental rights.
• Both Parents Unfit: When neither parent can safely care for the child, the court may award custody to a qualified relative who proves extraordinary circumstances. If no suitable guardian is available, foster care may be considered as a last resort. The child’s safety and stability always come first.

Will Sole Legal Custody Hurt a Child?

Sole legal custody will not hurt a child, nor will it damage their relationship with the other parent. A parent will not lose their parental rights if they are unable to make major decisions on their child’s behalf. A parent who does not have these rights can be awarded either joint residential custody, or have visitation rights. A parent can build a loving, healthy, relationship with their child, regardless of whether or not they have legal custody.

What to Expect During a Custody Hearing

Walking into a custody hearing can be nerve-racking if you don’t know what to expect. Here’s an overview of how custody hearings work in New York and the roles of the people involved:

1. The Setting: Custody hearings are judge-only (no jury). In Family Court, it’s often a small hearing room; in Supreme Court (divorce), it’s a formal courtroom. Before trial, the judge may issue temporary orders and encourage settlement.
2. Participants: Both parents (or parties seeking custody) and their attorneys attend. If you can’t afford an attorney, the court may assign one—automatically in Family Court or for custody issues in divorce. If representing yourself, be prepared and follow court rules.
3. Attorney for the Child (AFC): In contested cases, the court typically appoints an AFC to represent the child’s interests. They speak with the child, assess the home environment, and offer input to the judge. The AFC is neutral and can question witnesses and parents like any attorney.
4. Judge’s Role: The judge manages the hearing and makes the final decision. Both sides present evidence, call witnesses (including parents, teachers, family), and may cross-examine. Judges follow standard evidence rules but have flexibility in family court.
5. Custody Evaluator: In high-conflict cases, a court-appointed evaluator (usually a mental health expert) investigates each parent’s fitness, interviews the child, and provides a report and recommendations. While not binding, judges give these opinions significant weight.
6. During the Hearing: Each side testifies and presents documents or witnesses. Hearings can be brief or span several days. Remain calm and respectful—judges value stability and child-focused behavior. Temporary custody arrangements may influence the final decision.
7. The Custody Order: After the hearing, the judge issues a custody order outlining legal and physical custody and visitation. This may happen right away or via a written decision later. Conditions like co-parenting classes or neutral drop-offs may be included. If the order is violated, the other parent can return to court to enforce it. Future changes require showing a significant change in circumstances.
8. After the Hearing: The custodial parent follows the order as written. If unsatisfied, a parent may appeal within a set timeframe. Courts can also assign support services post-hearing—like supervised visitation or mediation for detailed visitation plans.

Tip: During your custody hearing, stay calm and stick to facts about the child and your care for them. Courts appreciate parents who show they are child-centered (for example, who talk about the child’s routines, schooling, friends, and needs) rather than those who are self-centered.

Manhattan Child Custody Lawyer

The law firm of Brian D. Perskin & Associates routinely handles child custody, as well as divorce, cases throughout the New York City area. For more information, contact us to schedule a free, no-obligation consultation.