CasewellThe law in plain words
Under Domestic Relations Law § 70, "there shall be no prima facie right to the custody of the child in either parent." The court decides "solely what is for the best interest of the child."
Wondering who usually ends up with custody? Our page on the chances of getting full custody in New York explains what the figures can and cannot show.
Custody terms in New York
- Legal custody: the right to make major decisions, such as medical care, schooling and religion.
- Joint legal custody: parents make those decisions together, wherever the child lives.
- Physical custody: also called residential custody. It means day-to-day care.
- Sole physical custody: the child lives with one parent more than half the time. The other parent has visitation.
- Visitation: also called parenting time, or "parental access" in some courts.
People often say "full custody," but it is not a legal term in New York. They usually mean sole legal and sole physical custody. A custody order commonly lasts until the child turns 18, unless it ends or changes sooner.
Is New York a 50/50 state?
No. New York has no presumption of joint custody or equal time, and no list of factors in the statute.
In Braiman v. Braiman (1978), the state's highest court said joint custody suits "relatively stable, amicable parents." It is not a default.
Judges look at the child's best interests and how well the parents can cooperate. In 2023, an appeals court ended joint legal custody for parents who could not work together.
As of October 24, 2026, bills to presume shared parenting, or 50/50 temporary orders, were still in committee.
What judges weigh
The factors come from court decisions, including Eschbach v. Eschbach (1982). No single factor decides the case. Judges look at the whole picture:
- the quality of each home and the guidance each parent gives
- each parent's ability to support the child's emotional and intellectual growth
- each parent's finances and fitness
- the effect on the child's relationship with the other parent
- stability, and who has been the main caregiver
- keeping siblings together
- any domestic violence
- the child's wishes, which count more as the child matures
A parent's efforts to undermine the child's bond with the other parent can affect custody. Blindness alone cannot decide custody.
Your child's preference
New York sets no age at which a child decides. The child's wishes are one factor.
- Weight: judges consider the child's age, maturity and whether a parent influenced the child.
- Older children: a mature child's wishes may get "great weight," but the judge makes the final decision.
- Private interview: a judge may talk with the child without the parents or lawyers present. This is called a Lincoln hearing, and it is up to the judge.
- Attorney for the Child: the court may appoint a lawyer for the child. That lawyer generally argues for what a capable child wants, within the lawyer's professional duties.
Parents are not in the room when the judge speaks with the child.
Mothers' and fathers' rights
Neither parent starts ahead. Under § 70, neither has a "prima facie right" to custody.
The court system says it does not favor one parent over the other. Legal aid guidance adds that judges do not favor a mother over a father, even for a young child.
A father's chances depend on the same evidence as anyone's: his role, his home and the child's needs.
If you were never married
With no court order, both legal parents have equal rights to custody, the court system's guidance says. The other parent must first be a legal parent.
- Acknowledgment of parentage: both parents complete the required state form, witnessed or notarized as the form requires. Since February 15, 2021, it replaces the old acknowledgment of paternity.
- What it does: it establishes parentage with no court case. It can be the basis for custody and visitation rights.
- Changing your mind: an adult signer can ask the court to cancel it within 60 days. If a court or agency case about the child starts sooner, the deadline is the answer date in that case.
- After that: it can be challenged only for fraud, threats or pressure, or a serious mistake about the facts. The court can still refuse DNA tests if they would not serve the child.
Without an acknowledgment, Family Court can set parentage with an order of filiation. Filing is free, and the case must usually start before the child turns 21.
Domestic violence
Under DRL § 240, a parent can raise domestic violence in a sworn court paper. If it is shown to be more likely than not, the court must consider its effect on the child.
- On the record: the judge must say how the violence factored into the decision.
- Protective parents: a parent who acts lawfully, in good faith, to protect a child from abuse cannot lose custody for that reason alone.
- Child abuse: if shown, the court cannot give custody to a parent who presents a substantial risk of harm.
- Records checks: before a permanent or first temporary custody order, the court must run checks. These cover abuse and neglect rulings, warrants, and protection order and sex offender registries.
A parent who committed domestic violence may still get supervised or limited time with the child, if the judge finds it safe.
Orders of protection
A family offense petition in Family Court can lead to an order of protection. It is open to parents who share a child, married or not.
- Where: Family Court, criminal court, or both.
- Temporary order: a judge can issue one when you file, for good cause, even without the other parent there.
- Not a finding: a temporary order does not mean anyone did anything wrong.
- How long: a final order lasts up to two years. It can last up to five with aggravating circumstances, or if the conduct broke an existing order. It can be extended.
- Custody: the judge may include temporary custody or visitation terms. Since December 21, 2025, records checks come first.
If you cannot afford a lawyer, ask whether you qualify for a free, assigned one. It depends on the case and your finances.
Emergency and temporary orders
- Order to show cause: a custody petition can be filed with an order to show cause, the fast route for urgent requests.
- Temporary emergency order: a judge can issue one even before the records checks are done. The checks must follow within 24 hours, or on the next court day.
- During a divorce: the Supreme Court can make temporary custody orders before the final judgment.
- Abuse: a temporary order of protection can include custody terms.
New York courts can also act in an emergency to protect a child who is in the state.
Moving with your child
New York has no statewide mileage rule for moves. A move can still need court review, especially if it affects parenting time or goes against your order. Each request is decided on its own facts, under Tropea v. Tropea (1996).
- The burden: the parent who wants to move must show, more likely than not, that the move serves the child.
- What judges weigh: each parent's reasons, the child's bonds, the effect on time with the other parent, and the benefits of the move.
- No order yet: in a first custody case, a planned move is just one factor.
Moving first can backfire. In a 2025 case, a mother moved before the court ruled, and the father later got sole custody. Check your order, which may limit moves.
Moving to a neighboring state? Its custody rules may differ. Read our guides for Massachusetts, New Jersey and Pennsylvania.
Changing custody
To change an order, the parent asking must show a change in circumstances. The change must make a new order needed for the child's best interests.
- A first hurdle: you must show enough of a change just to get a hearing.
- No extraordinary circumstances needed: the state's highest court said so in Friederwitzer v. Friederwitzer (1982).
- Agreements: an earlier agreement between the parents is one factor, not binding.
To change an order in Family Court, file form GF-40. To enforce one, file GF-41. If your divorce judgment says only the Supreme Court can change it, go back there.
Appeals from Family Court must usually be filed within 30 days.
Parent education and mediation
- Parent education: the court may order both parents to attend the state's Parent Education and Awareness Program, in separate sessions.
- Abuse: where domestic violence is alleged, the court cannot require it. A victim can opt out.
- Cost: providers may charge, but must waive or reduce the fee for hardship.
- Mediation: voluntary and confidential in Family Court custody cases. Abuse claims and threats are not kept confidential.
- Agreements: a parenting plan agreed in mediation becomes a court order once the judge approves it.
What a parent says in a parent education class cannot be used as evidence.
How to file for custody in New York
New York must usually be the child's home state, meaning the child lived there for the six months before filing.
- Choose the court. Custody cases usually start in Family Court. If you are divorcing, custody is decided in the Supreme Court divorce case.
- Pick the county: file where the child lives.
- Fill in the petition, form GF-17, from the Family Court forms page or at the courthouse.
- File it. There is no fee in Family Court.
- Serve the other parent and attend the first court date.
If you cannot afford a lawyer, ask whether you qualify for assigned counsel, a free court-appointed lawyer. It depends on the case and your finances. The judge explains this at the first appearance. NY CourtHelp explains each step.
How much does it cost to file for custody in New York?
Family Court is free. Fees apply in the Supreme Court, which handles divorces.
| Filing | Fee |
|---|---|
| Custody petition in Family Court | Free |
| Family offense petition | Free |
| Supreme Court index number | $210 |
| Request for a judge (RJI) | $95 |
| Putting a case on the trial calendar | $30 |
| Each motion in the Supreme Court | $45 |
Supreme Court fees vary with the steps in your case. Some depend on whether a request for a judge (RJI) has been filed. Confirm the amounts with the clerk.
If you cannot afford Supreme Court fees, ask for poor person's relief, which can waive them.
What changed recently
- June 2026: both houses passed Kyra's Law, which would put child safety first in custody cases. As of October 24, 2026, it had not been signed, so it is not law yet.
- December 21, 2025: custody awarded in an order of protection now needs records checks first.
- December 2023: court-appointed custody evaluators must be licensed and have recent domestic violence training.
- January 1, 2022: a new child protective services report can be used in custody cases only if it meets a higher standard of evidence.
- February 15, 2021: the acknowledgment of paternity became the acknowledgment of parentage.
Shared parenting presumption bills were still in committee when we last checked, on October 24, 2026.
Building the record
New York judges weigh stability, each parent's guidance and who has been the main caregiver. Those questions are answered with dates, not adjectives.
Note each exchange, school task and doctor visit as it happens. Casewell keeps those notes and the messages behind them together, so a lawyer can read a clear timeline.
Before you record a call or a handover, check whether you can record your co-parent in New York.
A clearer way to prepare
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New record
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Court timeline
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Or keep a dated record as things happen in the Casewell app.
Is New York a 50/50 custody state?
No. New York has no presumption of joint custody or equal time. Judges decide on the child's best interests, and joint custody suits parents who cooperate.
Who has custody if the parents are not married in New York?
With no court order, the court system says both legal parents have equal rights. A father must first be a legal parent, through an acknowledgment of parentage or a court order.
How much does it cost to file for custody in New York?
Filing a custody petition in Family Court is free. A divorce in the Supreme Court starts with a $210 index number fee.
At what age can a child choose which parent to live with in New York?
There is no fixed age. A mature child's wishes may get significant weight, but the judge makes the final decision.
How far can a parent move with joint custody in New York?
New York has no statewide mileage rule. A move can still need court review, especially if it affects parenting time. The parent moving must show it serves the child.
How do I file a custody petition in New York?
File form GF-17 in Family Court in the county where the child lives. Filing is free, and you can ask whether you qualify for a free lawyer.
Sources
This page summarizes New York's Domestic Relations Law, Family Court Act, court rules, appellate decisions and 2026 bill status, as of October 2026. It explains the law in general terms and is not legal advice.
- Domestic Relations Law § 70 — custody between parents checked
- Domestic Relations Law § 240 — custody, domestic violence and records checks checked
- Family Court Act § 651 — custody in Family Court checked
- Family Court Act § 516-a — acknowledgment of parentage checked
- Family Court Act § 842 — orders of protection checked
- Matter of Tropea v. Tropea, 87 N.Y.2d 727 (1996) checked
- NY CourtHelp — filing for custody checked
- NY CourtHelp — about custody checked
- NY Assembly — Kyra's Law (S5998-C / A6194-C) bill status checked