This information has been adapted for the following New York Counties: Dutchess, Orange, Putnam, Rockland, and Westchester.
Custody & Visitation Basics – 9th Judicial District
What is custody?
There are 2 types of custody: physical custody and legal custody.
Physical custody means where the child primarily lives.
Court orders for physical custody can work in different ways. For example, there could be:
- Shared, or joint, physical custody.
- Primary, or sole, physical custody. This means that one parent (or caregiver) takes care of the child most of the time. This parent is often called the custodial parent. The other parent has visitation, or parenting time, with the child. Visitation means you can see your child during certain times. The parent with visitation is often called the non-custodial parent.
Legal custody means the responsibility for making important decisions about the life of a child. Important decisions include medical and religious decisions.
Court orders for legal custody can also work in different ways. For example, there could be:
- Joint legal custody between the parents.
- Primary, or sole, legal custody. This means that one parent makes the final decisions for the child.
How does joint legal custody work?
Joint legal custody means that both parents must talk to each other and agree on important decisions about their child. The parents share this responsibility regardless of where the child lives. Even if there is joint legal custody, the court can give one parent final decision-making authority. If the parents cannot agree on something, the parent with this authority makes the ultimate decision.
How do I file (ask for) custody or visitation?
You can file a petition for custody or visitation in the county where your child lives. A petition is a written request. Judges often decides custody and visitation at the same time in Family Court. If you are getting divorced, custody and visitation are usually decided in Supreme Court with the divorce.
In every county except for Dutchess, you can file a petition at the Family Court in the probation office. Probation can help you fill out forms. They cannot give legal advice. In Dutchess County, you can file a petition at the clerk’s office. There are other agencies that may be able to assist you.
Who can file for custody?
Any legal parent can file for custody of their child. Anyone else who plays an important role in the child’s life (such as a relative or family friend) may also ask the court for custody. If you are not a parent, the judge will look at the case differently to see if you can get custody. See page 2 of this guide for more information.
Can I get a lawyer to help me?
Yes. You can hire your own lawyer to represent you. If you cannot afford one, you may apply for an assigned lawyer at no cost to you. Assigned lawyers are also known as 18-B lawyers. You must submit your current financial information so the judge can determine if you qualify.
Who has custody of a child if there is no court order?
Parents share equal rights to physical and legal custody of the child when there is no court order.
Do I have to go to court to get custody or visitation?
No. Many times parents can come to an agreement without going to court. Sometimes parents reach an agreement on their own and tell the court their decision. The court can then enter the agreement as a court order. Other times, parents use mediation to try to reach an agreement before going to court. Mediation is when someone called a mediator helps you and the other parent come to an agreement. Note that mediation may not be a good idea when there has been domestic violence between the parents.
Why would I file for custody?
There are many reasons why you might want to start a custody case in Family Court. Here are some common reasons:
- You believe it is in your child’s best interests to live with you.
- You believe your child is being harmed where they live now or is in danger of being harmed.
- You and the other parent have trouble talking to each other about your child.
Can a non-parent get custody of a child?
It depends. In limited circumstances, a non-parent may be able to get custody of a child. When a judge is deciding a custody case between a parent and someone who is not a parent, the judge considers different things.
First, the judge will decide whether there are extraordinary circumstances. Examples may be if there was abuse or neglect, the child was harmed by domestic violence, or there is substance abuse in the parent’s home. If the non-parent has been caring for the child for a long time, it may automatically be considered an extraordinary circumstance. If there are no extraordinary circumstances, the judge can dismiss the case.
If there are extraordinary circumstances, the judge will then decide what is in the child’s best interests. For more information, see the Family Legal Care guide, “Rights of Relatives in Family Court.”
Can we still go to mediation even if our case is already in court?
Yes. Even if you already started a Family Court case, you can still ask the judge to go to mediation. Sometimes the court will send parents to mediation. If you reach an agreement in mediation, you can let the judge know what it is. Or, if you have a written agreement, you can give it to the judge. The judge will decide whether to enter the agreement as a court order. For more information, contact one of the mediation centers below:
Mediation Center of Dutchess County
Orange and Putnam Counties:
Dispute Resolution Center
CLUSTER Community Services – Rockland Mediation Center
CLUSTER Community Services – Westchester Mediation Center
I am a parent. How will a judge decide custody of my child?
When two parents want custody, a judge must determine what is in the best interests of the child. The judge will look at many things when figuring this out. Each case is different. The judge’s decision about custody and visitation will depend on the facts and circumstances of your family’s case. For example, the judge will consider factors such as which parent is the primary caregiver, each person’s parenting skills, and the quality of each parent’s parenting time with the child. The case will not be decided based on who loves the child more or who has more money. The judge does not favor one parent over the other, even if the case involves a young child.
Will my child get a say in who gets custody?
The court may give your child a lawyer to represent them in a custody case. The lawyer is called an attorney for the child. Sometimes the court assigns the attorney for the child from a panel, or group, of lawyers who are certified to represent children in Family Court. The attorney for the child’s job is to tell the judge what the child wants. The attorney for the child has a legal obligation to take a position in the case. This position may or may not be the same as your position.
The judge may consider what the child wants if the child is old enough. This depends on the child’s age and maturity. The judge and the attorney for the child want to be sure that this is what the child really wants, not what a parent told the child to say.
Sometimes the judge will schedule a date and time to meet only with the child and the attorney for the child. You will be notified about any meeting between the judge, your child, and the attorney for the child. You may be able to ask the judge to raise certain topics during the meeting.
What if things change after the judge makes an order?
You can file a petition to modify, or change, the order. This is known as a modification petition. You must show that there has been a substantial change of circumstances. This means a major change in one of the parent’s or the child’s life. It can be difficult to prove. The judge will hear the case and decide whether to change the order.
I do not want custody, but I want to see my child. How do I do this?
You can file a petition for visitation. The court will almost always allow a parent to visit with their child. In determining visitation, the court will consider what is in the best interests of the child.
Can I visit my child if they are in foster care?
Yes. You have the right to visit with your child at least once every two weeks if your child is in foster care. However, if your rights were terminated, you do not have the right to visit your child. For more information, see the Family Legal Care guide, “Termination of Parental Rights.”
Why would the court NOT allow a parent to visit a child?
The court may not allow a parent to visit a child if there is evidence that the visits will put the child in danger or hurt the child. Evidence is information presented to the court to prove or defend a case. Examples of things the court might consider dangerous are drug or alcohol problems, a history of sexually abusing the child, or the exposure of the child to domestic violence.
If the court thinks the child would be in danger, it can order supervised visitation. This means someone else is there to watch while you visit with the child. This can be by a person on whom both parents agree or at one of the agencies below:
Can I ask for visitation with a child if I am not the parent?
Grandparents and siblings can petition for visitation with a child. The judge will order visitation if:
- Visitation is in the best interests of the child; and
- Special circumstances led to the person not being able to visit with the child.
The following may be an example of a special circumstance: You are a grandparent and your child died. Before your child died, you saw your grandchild often. Now you never see your grandchild.
What happens if there is an order of protection and a visitation order?
Sometimes the court will order that the child has to be picked up and dropped off at a police station or some other safe place so that the parents will have no contact with each other.
If the court thinks there has been domestic violence in the home and the child would be in physical or emotional danger by spending time alone with the person, the judge can also order supervised visitation.
If the non-custodial parent is not paying child support, can I stop the visits?
No. Child support and visitation are generally separate matters. The courts believe that it is best for children to spend time with both parents. In fact, a judge may punish a parent who stops visits by the other parent without permission from the court. Often, the judge will keep the visits going, regardless of whether or not the parent is paying child support.
What can I do if the other parent does not follow the order?
You can file a violation petition in court. This lets the judge know what has been going wrong. Some examples of violations may be: missing visits, arriving late to visits, acting inappropriately with the child during the visits, bringing the child back late, and not talking to the other parent about important decisions if the order gives you joint legal custody. The judge will determine if the parent has violated the order and how to respond. For example, the judge could apply a penalty or change the order.
Can I choose who I want to take care of my children if something happens to me?
Yes. In New York, you can designate, or name, someone to take care of your children if you are sick and not able to do so. The person you designate is called a standby guardian. Standby guardians can be friends or relatives. You do not have to be sick to designate a standby guardian. You do not give up custody when you designate a standby guardian.
You can designate a standby guardian by filing a petition in either Family Court or Surrogate’s Court. There is also a special form you can fill out that lets you temporarily designate a standby guardian without going to court first.
Family Legal Care
Family Legal Care offers free legal information and guidance on New York family law and Family Court. Call our Helpline at 800-696-8629, or visit familylegalcare.org to learn more.
Pace Women’s Justice Center (PWJC)
The Pace Women’s Justice Center (PWJC) provides a free Helpline and legal services to victims and survivors of domestic violence, sexual assault, and elder abuse in Putnam and Westchester Counties. Call the Helpline at 914-287-0739, or visit law.pace.edu/wjc for more information.
Legal Services of the Hudson Valley
Legal Services of the Hudson Valley provides free legal representation to survivors of domestic violence, as well as some individuals with HIV or mental illness, veterans, members of the LGBTQ community, seniors, and individuals caring for children because of abuse and neglect by the parents, in Family Court matters in Westchester, Putnam, Rockland, Orange, Dutchess, Sullivan and Ulster Counties, including representation in family offense proceedings to request an order of protection, custody matters, and child support. Call the intake line at 1-877-574-8529 and see their website at lshv.org.
This document should not take the place of a consultation with a lawyer. Family Legal Care encourages all individuals involved with the Criminal and Family Court systems to consult with a lawyer.
This guide was created in collaboration with the Pace Women’s Justice Center (PWJC). For more information about PWJC, visit law.pace.edu/wjc.