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NY Child Custody Lawyer & Visitation Attorney – Frequently Asked Questions (FAQs)

Child custody cases can be challenging and exhausting.  Further, knowing where to start can seem daunting when a parent has never been embroiled in domestic litigation.  However, with the high stakes of child custody hanging in the balance, it is essential to understand the process and be adequately prepared.  This is where having an experienced New York child custody attorney by your side can be invaluable to explain your options, assist in developing a compelling case, and advocate zealously on your behalf.

At Friedlander and Mosher, we have a deep understanding of New York custody law and stand ready to help clients seeking to achieve favorable outcomes in contentious child custody and domestic disputes.  If you would like to file for visitation or custody of a child or petition for the modification of an existing custody order, call our office to learn how we can help.

Serving Clients in Ithaca, Binghamton, Cortland, Watkins Glen, Elmira, Waverly, and the Surrounding Communities, and throughout Northern New York.

If you’re going through a custody dispute, we have prepared a list of some of the most frequently asked questions.  Please note that these FAQs are not legal advice and they may assume certain facts that may or may not be applicable to your situation. We can only provide legal advice in connection with specific fact circumstances to our clients.  If you are involved in a custody battle and are unfamiliar with the process, we encourage you to read through the following FAQ to gain an understanding of what you may be prospectively facing, and to call our firm to learn how we can help you.

What is the Difference Between Legal, Physical, Joint, and Sole Child Custody?

Having legal custody gives a parent the right to make essential care decisions for a child (such as where they will attend school, what medical treatment will be administered, and their religious upbringing).  In contrast, physical custody specifies where the child will live.

There are two types of legal and physical custody: sole custody and joint custody.  If awarded joint legal custody, both parents will have an equal say in making decisions for the child.  Parents must maintain strong communication to keep each other apprised of the child’s needs and to make decisions together.

Only one parent will have the authority to make decisions about the child if sole custody is awarded.  The noncustodial parent may have the right to receive medical or educational information (such as report cards and notes from doctor’s appointments).  Still, they cannot make important decisions on the child’s behalf.

For physical custody, if joint physical custody is awarded, a child will spend approximately half of their time living with each parent.  If a judge grants sole physical custody, the custodial parent will have physical custody of the child most of the time, and the other parent will only be granted visitation.

Who Can Get Custody of a Child in New York?

Typically, a mother and legal father can ask for custody.  However, grandparents, other relatives, or friends may also petition the court for custody, but they must first prove that “extraordinary circumstances” exist that would justify being given custody over the biological parents.  Further, they must also show that granting them custody is in the best interest of the child.

Who Can Be Granted Visitation of a Child?

Parents, siblings, half-siblings, and grandparents can ask the court for visitation with the child.  In the case of a parent, they have an automatic right to regular, meaningful visitation, unless the visits would be harmful to the child.

When Can I Petition a Court for Custody?

New York has specific jurisdictional rules that determine when a court can hear a case.  A court has jurisdiction if:

  • A child is less than six months old and has lived in New York since birth,
  • A child has lived in the state for the past six months,
  • New York previously issued the current custody order for the child, or
  • A child enters the state because of an emergency.

Can a Custody Order be Changed?

If a custody order has previously been entered, either parent can petition the court for a modification to change the terms.  However, the petitioning party must show that there was a significant change in circumstances since the last order and that a change of custody is in the child’s best interest.

For example, if a parent with sole custody develops a drug or alcohol problem that impairs his or her ability to care for the child adequately, this could be grounds for modifying the order and granting custody to the other parent.

How Does Child Custody Work in a New York Divorce or Separation?

If two parents can agree on an amicable custody arrangement, then a determination by a judge is not needed.  In these situations, a custody agreement can be prepared that outlines, in specificity, all of the terms of the arrangement (such as how decisions will be made, what holidays each parent will spend with the child, when each parent can take the child on vacations, etc.).

As custody disputes are often a product of bitter divorces, tensions are usually too high for parents to come to a friendly understanding regarding custody.  In these cases, custody can be settled in mediation or by a judge.

How Does a Judge Determine Who Gets Custody in New York?

New York law specifies that custody is determined solely by what is in the best interest of the child and what will promote the child’s welfare and happiness.  Thus, neither parent has an automatic right to custody.[1]

When determining what is in the best interest of a child, a judge will consider:

  • The age of the child,
  • Which parent has been caring for the child before a separation,
  • The parenting skills of each parent, and their willingness to provide primary care,
  • The employment of the parents and work schedules,
  • The physical and mental health of the parents,
  • The emotional ties of a parent, siblings, and other members of the family to the child,
  • The moral fitness of each parent,
  • The preference of the child (depending on their age),
  • The parent’s ability to cooperate with the other parent to encourage a healthy relationship.[2]

When making decisions about child custody, Judges may consider the child’s preference.  The court-appointed lawyer for the child will meet with the child and advocate for the child’s preference throughout the proceedings.  The final outcome and custody order will ultimately be based upon the Judge’s determination as to the best interests of the child.

What Are My Options for Pursuing Custody?

If a custody order is not in place, there are typically two options available for pursuing custody.  First, a party can file a custody petition and have the case heard by a judge.  Alternatively, it may be possible to have the case referred to mediation.  This option allows parents to work together with a neutral third party to develop a mutually acceptable plan for both parties.

Can My Ex Move Away with Our Child?

A parent can request permission to move with a child by petitioning for custody modification in Family Court.  However, if a parent with physical custody of a child wants to move far enough away that it will affect custody with the other parent, permission must be obtained first.  This can either come from the other parent or the court.

What Can I Do If the Other Parent Refuses to Bring Our Child Back?

If a custody or visitation order is in place and one parent refuses to return a child, the other parent may contact the police for assistance.  The party may also file a violation petition with the Family Court.

Can A Court Force My Ex to Visit Our Child?

No.  Courts will not force a parent to visit a child.  However, visitation may be limited and will not increase until he or she begins visits consistently.

What Are the Consequences of Violating a Protection Order?

In cases involving abuse, domestic violence, or sexual assault, a judge may issue a Protection Order, mandating that one parent stay away from the other parent and children.  If a Protection Order has been violated, a violation petition can be filed with the court.  If the violation is proven, the order of protection can be modified, and the person can be sentenced to jail for up to 6 months for each act committed in violation of the order.  Additionally, the court can revoke or suspend the person’s license to carry a firearm.  If the violation is severe, the case may be transferred to a criminal court where the respondent may face a substantially longer jail sentence.[3]

Will My Visitation Be Stopped If I Do Not Pay Child Support?

Visitation cannot be stopped or withheld if one parent does not pay child support, but a violation petition can be filed to seek penalties and wage garnishment.

Contact Our Experienced Ithaca Child Custody Attorneys Today!

Due to the importance of a court’s decision in matters involving children, we strongly advise all parents to obtain legal counsel with whom they feel comfortable.  If you are dealing with family law concerns, contact our New York child custody lawyers to schedule a free consultation.  We can advise you of your rights and offer compassionate guidance throughout the entire process.

Related Pages


[1] New York Domestic Relations Law § 70(a).

[2] Best Interest of the Child, NYCourts.gov, https://www.nycourts.gov/CourtHelp/Family/bestInterest.shtml.

[3] A Guide to the New York State Family Court, Modern Courts, http://moderncourts.org/wp-content/uploads/2013/10/familycourtguide.pdf.

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