New York Child Custody Lawyer

Child custody refers to the legal responsibility for the care, control, and maintenance of a child. In New York, child custody issues commonly arise when parents separate or divorce. These cases often involve disputes between parents, grandparents, or other family members, with each party seeking what they believe is best for the child. However, disagreements over what custody arrangement would best serve the child's needs are common. The court will always base its custody decisions on what is in the best interests of the child. If you are involved in a custody dispute, contact a New York child custody lawyer at Stephen Bilkis & Associates, who can provide knowledgeable guidance, represent your interests in court, and work to ensure that the best possible outcome is achieved for you and your child.

Types of Child Custody in New York

There are two primary types of custody in New York: legal custody and physical custody.

• Legal Custody: This refers to the right to make significant decisions in a child’s life. These decisions include education, healthcare, and religious upbringing. Legal custody can be awarded to one parent (sole legal custody) or both parents (joint legal custody). When both parents have joint legal custody, they must work together to make decisions that affect their child’s welfare. If one parent has sole legal custody, that parent has the authority to make all major decisions regarding the child’s upbringing without the input of the other parent. See DRL § 240(1)(b)
• Physical Custody: Physical custody, sometimes called residential custody, refers to where the child lives. The parent with physical custody is responsible for the child’s day-to-day care. Like legal custody, physical custody can be awarded solely to one parent (sole physical custody) or shared between both parents (joint physical custody). Joint physical custody means that the child spends time living with both parents, though the time might not be equal. If one parent has sole physical custody, the child primarily lives with that parent, and the other parent may have visitation rights. DRL § 240(1)(a)

How New York Courts Determine Custody

While at one time courts favored granting custody to the mother, currently in New York child custody is not automatically granted to either the mother or the father. The courts make decisions based on the best interests of the child, as emphasized in DRL § 70(a). It is important to seek the guidance of an experienced New York child custody lawyer to navigate this process and advocate for your rights. While each case is unique, the court will consider several factors to determine what arrangement is most suitable for the child. These factors may include:

• The parents’ ability to care for the child: The court will evaluate each parent’s ability to provide for the child’s physical, emotional, and mental needs. This includes whether the parent can provide a stable home environment, offer emotional support, and make decisions in the child’s best interests. See DRL § 240(1)(a).
• The child’s relationship with each parent: The court will assess the bond between the child and each parent. If the child has a stronger or more stable relationship with one parent, this may influence the Family Court’s decision under DRL § 240(1)(a).
• The child’s wishes: If the child is of sufficient age and maturity, the court may take into account the child’s preferences regarding which parent they want to live with or how they want to split time between parents. While the statute does not give a specific age, generally, children who are at least 12 years old are more likely to have their preferences taken into account. The court will evaluate the child’s maturity level on a case-by-case basis. However, the court is not bound by the child’s wishes and will weigh them against other factors as per DRL § 240(1)(b).
• Each parent’s mental and physical health: The court will review the mental and physical health of each parent to determine whether one parent is better suited to care for the child. See DRL § 240(1)(a).
• The parents’ ability to cooperate: In cases where joint custody is considered, the court will evaluate the parents’ willingness and ability to work together to make decisions regarding the child’s welfare. If there is a history of conflict, lack of cooperation, or inability to communicate effectively, the court may be less likely to grant joint custody. See DRL § 240(1)(b). Given the complexities involved in these assessments, consulting with an experienced New York child custody lawyer is important to ensure your interests are well-represented throughout the process.
• History of domestic violence or abuse: If there is a history of domestic violence, child abuse, or neglect, the court will consider this when making custody decisions. DRL § 240(1)(a) requires courts to give particular attention to the safety of the child in such situations.
• Work schedules and child care arrangements: The court will examine the parents’ work schedules and ability to provide for the child’s daily needs. If one parent’s schedule makes it difficult to care for the child, the court may favor the other parent. DRL § 240(1)(a) addresses the importance of a stable and supportive home environment.
• Siblings and extended family: The court may also consider the child’s relationship with siblings and extended family members. In some cases, the court may prefer to keep siblings together in the same home. See DRL § 240(1)(a).

Visitation Rights

If one parent is granted sole physical custody, the other parent is usually entitled to visitation, unless there is evidence that visitation would be harmful to the child. See DRL § 240(1)(a). Visitation allows the non-custodial parent to spend time with the child according to a schedule determined by the court or agreed upon by the parents.

Visitation schedules can vary based on the needs and circumstances of the parents and child. A typical visitation schedule may allow the non-custodial parent to have the child on weekends or certain holidays. In some cases, if the parents live far apart or have a history of conflict, supervised visitation may be ordered. This means that the non-custodial parent can only see the child under supervision. DRL § 240(1)(a)

Modifying a Custody Order

While a court may describe a custody order as final, child custody orders are not permanent. Either parent can request a modification of the custody order. Under New York law, in order for there to be a custody modification, there must be a change in circumstances. Common reasons for requesting a modification include a parent relocating, a change in the child’s needs, or concerns about the child’s safety, as outlined in DRL § 240(1)(a).

For example, in In Hendershot v. Hendershot, 187 A.D.3d 1584 (N.Y. App. Div. 2020), the father appealed a court order that granted the mother an increase in her visitation her rights with their children. Initially, the divorce judgment provided the father with significant time with the children during the week, while the mother received defined visitation rights. The mother petitioned the court to increase her visitation time arose, arguing that there had been significant changes in both parents' living circumstances including the relocation of the father. Furthermore, the children asserted that she wished to spend more time with the mother. The court agreed with the more that there were significant changed circumstances such that a modification of the custody order was in the best interests of the children.

To modify a custody order, the parent requesting the change must file a petition with the court and provide evidence that the modification is in the best interests of the child. The court will review the circumstances and decide whether to modify the original order under DRL § 240(1)(a).

Parent Relocation

One of the most common reasons for custody disputes and petitions to modify custody orders is when a parent wants to relocate with the child. If the relocation would affect the non-custodial parent’s visitation rights or the child’s relationship with the other parent, the custodial parent must seek approval from the court. The court will consider several factors when determining whether to allow the move, including the reason for the relocation, the impact on the child’s relationship with the non-custodial parent, and how the move will affect the child’s overall well-being.

For example, in H.K. v R.C. 2021 NY Slip Op 21190 the mother sought to relocate 20 miles from the upper west side of Manhattan to Scarsdale. The father lived in Livingston, New Jersey- 25 miles from Manhattan. The mother sought to move to Scarsdale for better educational opportunities for their child. The father objected to the move, stating that it make it less convenient for him to see the child. The court found in favor of the mother, permitting the move. The court concluded that benefits to the child of moving the Scarsdale outweighed the relative minor inconvenience to the father.

Grandparents’ Custody and Visitation Rights

In certain cases, grandparents may seek visitation or custody of their grandchildren. In New York, grandparents can petition the court for visitation if they can show that it is in the child’s best interests, as provided by DRL § 72(1). However, the court will prioritize the parents’ rights and will only grant visitation to grandparents if the parents’ decisions are found to be harmful to the child. Given the complexities involved in such cases, it is advisable to contact an experienced child custody attorney in New York to help navigate the legal process and protect your rights.

For example, in Linda UU. v. Dana VV. 212 A.D.3d 906 (N.Y. App. Div. 2023), the child’s maternal grandmother, Linda, and the child’s mother, Dana, were involved in a custody dispute. Initially, the court granted Linda and Dana joint custody. However, with the relationship between Linda and Dana becoming increasing contentious, Dana petitioned the court for sole custody. In granting Dana sole custody, the court pointed out that the circumstances must be extraordinary for the court to grant a grandmother custody instead of a parent. Such was not the case. There was evidence that mother was an active, involved, responsible parent. The grandmother did not produce any evidence to the contrary. However, the court did grant the grandparent visitation.

Enforcement of Custody Orders

Once a custody order has been issued by the court, both parents must follow its terms. If one parent violates the custody order, the other parent can seek enforcement through the court, as provided under DRL § 240(1)(a). Common violations include failing to return the child after visitation, denying visitation, or making decisions about the child without consulting the other parent.

When a custody order is violated, the parent seeking enforcement can file a petition with the court. The court may impose penalties, modify the custody arrangement, or hold the violating parent in contempt of court.

Contact Stephen Bilkis & Associates

Child custody cases in New York involve complex legal and emotional issues. The primary concern in any custody case is the best interests of the child, and courts will make decisions based on what arrangement will provide the child with stability, care, and support. Whether parents can reach a custody agreement on their own or require the court’s intervention, it is important to work with a knowledgeable child custody attorney serving New York who can help navigate the legal process and advocate for the child’s well-being. Contact us at 800.696.9529 to schedule a free, no-obligation consultation regarding your case. We represent clients in Nassau County, Queens, Bronx, Brooklyn, Long Island, Manhattan, Staten Island, Suffolk County, and Westchester County, providing dedicated support and tailored legal strategies to protect your financial interests.

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