How do custody and visitation work in New York?

The full answer

Custody is decided under the best-interests standard. Domestic Relations Law § 240(1)(a) and § 70 both say there is no prima facie right to custody in either parent — mothers and fathers are on equal footing — and the court determines what is for the best interest of the child and will best promote the child's welfare and happiness.

The statutes don't give a fixed checklist, so judges look at the whole situation. What the statute does require: if a parent proves by a preponderance of the evidence that the other parent committed domestic violence against them or a family member, the court must consider its effect on the child's best interests and explain on the record how it did so (§ 240(1)(a)). The court may not place a child with a parent who presents a substantial risk of harm to the child. And a parent who reasonably and in good faith acts to protect a child from abuse or domestic violence can't lose custody or visitation solely for that.

Custody cases can be brought in Family Court, which has the same powers as the Supreme Court here (Family Court Act § 651(b)), or decided inside a divorce case in Supreme Court. Grandparents may also seek visitation or custody in some situations (§ 651(b)). In any case, the Family Court may appoint an attorney for the child (§ 249(a)), and a parent seeking custody who can't afford a lawyer has the right to ask for one to be assigned (§ 262(a)(v)).

Which state's courts decide

Custody cases are generally heard in the child's 'home state' — the state where the child lived with a parent for at least six consecutive months right before the case starts (Domestic Relations Law § 75-a(7)). If you recently moved to or from New York, check this before filing.

Exceptions and special cases

• Domestic violence: proven domestic violence must be weighed in the custody decision (§ 240(1)(a)). You can ask for an order of protection in the same court.
• Abuse allegations: if abuse of the child is proven by a preponderance of the evidence, the court must consider it in setting visitation.
• Agreements: parents can agree on an arrangement and ask the court to make it an order.
• Changing an order: the court can modify a custody order later (Domestic Relations Law § 70(a)); either parent can file a petition, and the question is again what is now in the child's best interests.
• Child support is a separate case with its own rules and enforcement — see the child support page.

What to do now

1. 1

   Try to agree on a plan

   Write down the schedule, holidays, decision-making, and how you'll communicate. Mediation can help when it's safe.

2. 2

   File a petition if you can't agree

   File a custody or visitation petition in Family Court in the county where the child lives, or raise custody in your divorce case.

3. 3

   Ask about a lawyer

   At your first appearance, the judge must tell you about your right to a lawyer; if you can't afford one, ask for an assigned lawyer (§ 262).

4. 4

   Keep good records

   School and medical records, a calendar of who cared for the child when, and messages between parents. Stay focused on the child.

5. 5

   Follow the order

   Once there is an order, follow it, and go back to court to change it rather than changing it yourself.

Frequently asked questions

Official sources

This page was written from the sources below. “Checked” is the date the source was last opened and read.

• N.Y. Domestic Relations Law (opens in a new tab)
  New York State Senate — Open Legislation (official text of the Consolidated Laws) · § 70, § 75-a, § 240(1)(a) · Checked: October 30, 2026
  Best interests, no automatic right for either parent, domestic violence, home state
• N.Y. Family Court Act (opens in a new tab)
  New York State Senate — Open Legislation (official text of the Consolidated Laws) · § 249, § 262, § 651 · Checked: October 30, 2026
  Family Court custody jurisdiction, attorney for the child, right to counsel
• CourtHelp — New York State Courts (opens in a new tab)
  New York State Unified Court System · Checked: October 30, 2026
  Family Court self-help and forms

Related questions

• Until what age is child support paid in New York? · Child support in New York: who pays, the percentages, and how to ask for it
• We share custody 50/50. Does anyone pay? · Child support in New York: who pays, the percentages, and how to ask for it
• Can I get an order of protection against an ex-boyfriend or ex-girlfriend? · How to get an order of protection in New York Family Court
• Does a temporary order mean the judge believes me? · How to get an order of protection in New York Family Court
• Can my spouse stop me from getting a divorce? · Getting divorced in New York: grounds, residency and how the process works
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Related guides

• Your rightChild support in New York: who pays, the percentages, and how to ask for it
• How toHow to get an order of protection in New York Family Court
• How toGetting divorced in New York: grounds, residency and how the process works