Child custody is a major aspect of most divorce cases. New York law states that before a judge can sign the judgment on a divorce case, the ex-spouses must first settle all issues regarding custody, visitation, and child support. This is to encourage the parents to prioritize the welfare of their children as they legally end their marriage. Parents may even file a child custody case in the Family Court before filing for divorce.
In this article, we’ll show you the process of filing a child custody case in New York State.
Who Can Petition the Court for Child Custody?
Apart from biological parents, grandparents, relatives, and people who are not blood relatives but have a meaningful and substantial relationship with the children can apply for custody.
Child custody cases are filed in two courts:
- Family Court – For standalone petitions due to paternity or domestic abuse cases.
- Supreme Court – For petitions from parents seeking divorce or legal separation.
For custody cases filed in the supreme court, parents may choose to include custody in their divorce trial or file a separate custody case at the family court. Regardless, the petition is opened at the supreme court.
It’s important to note that New York is not a 50/50 state. This means the courts do not automatically split parenting rights equally between parents.
How Is Custody Decided?
New York recognizes three methods for determining child custody:
- The parents decide on all matters by themselves. A judge will then sign and incorporate the custody order (the court will, of course, make sure that what’s been decided is in the best interests of the children).
- If the parents disagree on many areas, they can seek mediation or enter into a negotiation with their respective attorneys.
- If mediation and negotiations fail, the custody case will have to go to trial. The court may order an investigation by Social Services, get testimonies from both parents, and appoint an attorney for the children. The judge will then award custody based on the children’s best interests.
Temporary Parenting Plan
For child custody petitions tied to a divorce, the parents can file a temporary parenting plan if they have children who are still minors (17 years old and younger). Divorces can take months to finalize, so while waiting for a final, permanent decision about child custody and visitation, parents must follow the temporary parenting plan.
The temporary orders should settle concerns like:
- Where will the children live or with whom?
- Who will drive the children to and from school?
- Who will pay for current bills (e.g., dance classes, dental treatments, school miscellaneous fees)?
- When and where can the non-custodial parent visit?
If parents can settle these matters by themselves, they may no longer need to petition a temporary order. They can, however, file for one if conflict about their arrangements emerges halfway through the divorce.
All temporary parenting plans must be approved by the court, who will judge it based on the children’s best interests.
Submitting the Forms
If you are filing for custody in Family Court, you must file the following to your County Clerk’s office:
- General Form-17
- The parenting plan you propose to follow
If your custody petition is due to domestic abuse or other criminal offense, you should also include:
- A request for a Temporary Order of Protection
- Photos or other evidence showing criminal family offense
- An Address Confidentiality Affidavit (if revealing your address can potentially put you or your children at risk).
For custody cases filed in the Supreme Court, the plaintiff (the spouse who filed the divorce) can specify their intention to seek custody in the Summons with Notice or Summons with Complaint.
What if you are the defendant in your divorce case? You can agree with the custody request in the Summons, you may proceed with an uncontested divorce. If you disagree and want to change the proposed custody arrangement, you should Answer the Summons and turn the case into a contested divorce. Custody will then be included in the issues discussed at mediation or in court.
Once your petition are filed at the Family Court, you may:
- Ask the court sheriff to serve the defendant with a copy of the custody case during your first court appearance.
- Send the defendant a copy of the petition and notice of appearance through the mail.
You need to have your ex-spouse served at least eight days before your next court appearance.
If you filed for custody along with your divorce papers at the Supreme Court, you must serve the defendant a copy of the Summons in the next 120 days. They will then have 20 days to answer. If they agree to an uncontested divorce, you should obtain from them a signed and notarized Affidavit of Defendant.
Proper Process Service Is Required
You may need to bring additional documents, depending on what your county court requires. One thing you can be sure about, though, is that no matter which court or county you file a child custody case, you will need the help of a process server.
There are rules to follow when serving defendants with child custody papers. Mistakes can lead to delays, which also means more legal costs for you. To avoid risking your custody claim or spending more on legal fees, hire our licensed process servers to do the service on your behalf.
Avoid costly snags in your custody case by hiring process servers from Serve Index LLC.