- What Is an Order of Custody?
- Who May File a Petition for an Order of Custody?
- What is a Records Check?
- What Happens at the Hearing?
- What Is an Order of Visitation?
- Must the Parties Have Lawyers to Represent Them?
- Can a Custody or Visitation Order Be Changed?
- What Happens If One Side Interferes with the Custody or Visitation That Was Ordered by the Court?
- What is Mediation?
What Is an Order of Custody?
An order of custody gives responsibility for the care, control and maintenance of a child to one or both of the child's parents or to another party. The Court may issue an order of custody up until a child’s 18th birthday.
Who May File a Petition for an Order of Custody?
A parent, grandparent or a person with a substantial connection or relationship with the child may file a petition in Family Court requesting that the court place the child in his or her custody. A copy of the petition and a summons must be served upon (delivered personally to) each of the opposing parties and an affidavit of service must be filed with the Court. If the child's parents are separated and one parent seeks a custody order, that parent must have the papers served upon the other parent. If a non-parent is seeking custody of the child, then both of the child's parents must be served. In general, the child must have resided in New York State for 6 months or more before a custody petition may be filed.
Forms are available at www.nycourts.gov or at the Family Court Clerk’s office. If you believe the child is in imminent danger, there is a place on the petition to request immediate, temporary relief. In such cases, a Judge reviews the petition and makes a determination of how best to protect the child.
There are no filing fees in Family Court.
What is a Records Check?
State law requires that the Court conduct a review of data bases containing child protective records, orders of protection, the sex offender registry, and arrest warrants for any person seeking custody. The review is performed by court staff and the Judge will inform the parties and attorneys of the results. The Judge will also determine whether the results of the records search will impact any custody order.
What Happens at the Hearing?
If the opposing party is properly served with the petition and does not appear in court, the Judge will conduct a special kind of trial called an inquest, in which only the petitioner testifies.
If the parties agree about custody of the child, the judge will allow the parties to place the terms of an agreement on the record in open court and enter an order of custody on consent, without the need for a formal hearing. If the parties cannot reach an agreement about custody, the court will hold a hearing, taking testimony from both sides, and may appoint a lawyer to represent the child. The court may order an investigation and report from a social services agency or mental health professional. In some cases, the Judge may conduct a confidential interview with the child. After considering the evidence presented, the court will award custody based upon what is in the child's best interests.
A custody or visitation case may be heard by a Family Court "court attorney-referee", who may hear and decide the case and issue orders.
What Is an Order of Visitation?
A parent seeking to visit with a child may file a petition in Family Court against the person or persons who have custody of the child. Custody and visitation matters are often heard together within the same hearing, but a visitation petition may also be filed as a separate matter. Other family members, such as grandparents or siblings, may also file a petition seeking an order of visitation. The court will order visitation if it is in the child's best interests and if there is an existing relationship with the child.
Must the Parties Have Lawyers to Represent Them?
The parties to custody and visitation matters may represent themselves or hire lawyers. In some cases, when a party cannot afford to hire a lawyer, the judge may appoint a lawyer at no cost. The judge may also appoint a lawyer to represent the child; this lawyer is called the "law guardian".
Can a Custody or Visitation Order Be Changed?
Either party may file a petition to have a custody or visitation order modified (changed). The party seeking to have the order modified must prove that there has been a change of circumstances such that there is a “real need” to change the order since the original order was issued. The court holds a hearing to determine if a change is in the child's best interests.
What Happens If One Side Interferes with the Custody or Visitation That Was Ordered by the Court?
If a court order gives certain custody or visitation rights to a party and the other party fails to obey the order, the complaining party may file a petition alleging a violation of the order. After the court holds a hearing, the judge may change the order and/or impose sanctions on the party who has failed to comply with the order.
What is Mediation?
Contact the Family Court in your county to find out if your county provides a free, voluntary service where the parties meet with a trained mediator to discuss and resolve custody and visitation issues. If the parties reach an agreement, they sign a memorandum of understanding which is filed with the Court with a petition. The Court will then issue a custody/visitation order based on the parties’ agreement without the need to appear in Court.