Deciding where your child lives and who decides
If you are divorcing, or if you and your child's other parent were never married and cannot agree on a parenting arrangement, a court may have to decide who makes decisions for your child and where your child lives. Usher Law Group helps parents ask for custody and visitation orders, respond to petitions and change orders that no longer work.
In New York, courts decide custody and visitation for children under 18 (NY Courts: About Custody). Child support is a separate issue and generally continues until 21 in New York. New Jersey cases are decided under New Jersey law, which uses its own factors and procedures, so the New York points on this page should not be assumed to apply there.
Legal custody and physical custody
Legal custody is the right to make major decisions about a child's life, including:
- Education: which school the child attends and whether the child receives special education services.
- Health care: medical treatment, choice of doctors and preventive care.
- Religious upbringing: whether and how the child is raised in a religion.
Legal custody can be sole (one parent decides) or joint (the parents decide together).
Physical custody is about where the child lives day to day. One parent may have primary physical custody, with a parenting time schedule for the other parent, or the child may spend substantial time in both homes under shared physical custody.
Parenting time (visitation)
- Set schedules: specific weekdays, weekends, holidays and school vacations.
- Flexible or "reasonable" schedules: the parents work out the details between themselves, which works only when they communicate well.
- Supervised visitation: a third party is present when there are concerns about the child's safety or well-being.
How New York courts decide: the child's best interests
Parents are encouraged to agree on custody, and a court will usually accept an agreement that serves the child. When parents cannot agree, the judge decides based on the child's best interests, looking at the whole picture. Factors commonly considered include:
- Which parent has been the primary caretaker, and each parent's involvement in school, medical care and daily routines.
- Each parent's ability to provide a stable home and meet the child's physical and emotional needs.
- The child's age, health, special needs and ties to school and community.
- Each parent's willingness to support the child's relationship with the other parent.
- Any domestic violence, substance abuse or other safety concerns.
- The child's wishes, given more weight as the child gets older and more mature.
Neither parent is automatically favored because of gender. In contested cases the court may appoint an attorney for the child and may order a forensic evaluation.
How we help
- Explain which court your case belongs in and prepare or respond to the custody or visitation petition.
- Identify what helps and what hurts your position, including social media, messages and prior incidents.
- Propose a detailed parenting plan and negotiate toward an agreement where possible.
- Gather school, medical and other records and prepare you and your witnesses for hearings.
- Seek enforcement when the other parent does not follow an order, or a modification when circumstances change.
What to bring to your consultation
- Any existing custody, visitation, support or protection orders, and any petitions you have been served with.
- Your child's birth certificate and, for unmarried parents, any acknowledgment or order of paternity.
- A description of the current schedule and who handles school, medical care and activities.
- Relevant messages, emails and records, especially about safety concerns or missed parenting time.
Procedural points to keep in mind
- Which state: interstate custody jurisdiction is generally governed by a uniform law (the UCCJEA) adopted in both New York and New Jersey, which usually gives priority to the child's home state. Do not assume you can file wherever you now live.
- Changing an order (New York): the parent asking for a change generally must show a change in circumstances since the last order and that the change would serve the child's best interests.
- Relocation: a parent who wants to move a significant distance with the child usually needs the other parent's consent or court approval. Moving first and asking later can seriously harm a case.
- Follow the current order until a court changes it, even if both parents informally agree to something different.
Frequently asked questions
At what age can my child choose which parent to live with in New York?
There is no age at which a child decides. The judge considers the child's wishes as one factor and generally gives them more weight as the child grows older and more mature, but the decision is still based on the child's overall best interests.
We were never married. Does the father have custody rights?
A father who is not married to the mother generally needs paternity to be legally established, by a signed acknowledgment or a court order, before he can seek custody or visitation. Once paternity is established, both parents can ask the court for custody or parenting time.
Can I stop visitation if the other parent is not paying child support?
No. Custody and visitation are separate from child support. Withholding parenting time can hurt your own custody case. The proper step is to ask the court to enforce the support order.
Can grandparents ask for visitation?
In New York, grandparents may ask the court for visitation in certain circumstances, but they must first show they have standing to bring the case, and the court then decides based on the child's best interests. These cases depend heavily on the facts.