Court Process: 7 Steps to Child Custody in New York

Litigating custody of a child in New York consists of seven main steps. Some can be skipped or rearranged and others added, depending on your circumstances and county.

At any point, parents can agree on a plan and have a judge sign it. Then, they jump to Step 7 of the court process.

Mediation, collaborative law and other alternative methods for deciding custody follow their own processes.

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Step 1: Preparation

Do your research and consider your options. Will you request sole or joint physical custody? What about legal custody? What does your ideal parenting schedule look like?

Then, meet with a lawyer to come up with a legal strategy. Attorney representation is strongly recommended, but if you're not able to hire someone, you should at least do a free or low-cost consultation to get professional advice.

Step 2: Opening a case

Open a case with your family or supreme court. Divorce and legal separation cases go through supreme court. All other custody-related cases (a standalone custody petition, a request for a domestic violence restraining order, or a paternity case) go through family court.

After filing, you must officially notify the other party through a process called service.

Possible: Emergency custody hearing

If a child is at risk of being harmed or removed from the state within the next few days, a parent can request an expedited hearing to determine if emergency temporary orders are necessary (also called "ex parte orders").

If a judge issues emergency orders, they stay in effect until the next hearing, when they can be terminated, extended or replaced by temporary orders.

Possible: Separation hearing

If you're seeking legal separation, you'll generally have a hearing 40 days after service. There, a judge will review evidence and hear testimony from you and your spouse.

If all goes well, he or she will sign the Judgment of Separation, and you will be legally separated. Skip to Step 7.

Step 3: Preliminary court dates

If your case is in family court...

About three weeks after you file your custody petition, both you and the respondent (the other parent) will receive notice of your first court date, known as the preliminary appearance.

At this appearance, the judge may assign an attorney for the child or issue temporary orders. If a party can't afford an attorney, the judge assigns one at a reduced cost or pro bono (without charge).

The respondent isn't required to attend the preliminary appearance, but if present, they can accept service (notice of the case against them).

The judge will inform you whether you need to attend the next appearance, in which the judge's clerk will lead a discussion about settlement. Typically, only lawyers and self-representing parents attend.

If your case is in supreme court...

Four to six weeks after filing, you'll have a preliminary conference. Both parties must attend.

At the preliminary conference, both sides work with the judge to draft a preliminary conference order that includes a schedule for exchanging documents. After the judge, parents and lawyers sign, the document becomes a court order that all parties must obey.

Procedures at the preliminary conference can vary. The judge may address the parties from the bench, meet with lawyers privately or ask the court attorney to speak with the parties.

If necessary, the judge will assign an attorney for the child. Pressing issues like child support and custody may cause the judge to issue a pendente lite (temporary) order that usually lasts until settlement or trial.

Step 4: Discovery

Discovery is the process in which parties request and provide one another with information relevant to the case.

Documents such as financial records, affidavits and proposed orders are exchanged at scheduled appearances (family court) and conferences (supreme court).

The number of appearances or conferences depends on your case. Typically, supreme court has fewer than family court.

Information collected during discovery is not filed with the court, but failure to produce the requested documents can result in a motion for contempt from the other party.

During the discovery period, the judge may have the child's attorney conduct an investigation in which the attorney speaks with the child, parents and others to gather more information about the situation.

Possible: Evaluation

Complicated cases may require a forensic custodial evaluation, which can be requested by either party or recommended by the child's attorney.

In an evaluation, a mental health professional or licensed clinical social worker conducts interviews with the child and parents, looking for signs of mental illness, abuse, parental alienation and other issues. Some evaluations look at the entire case while others focus on a single issue.

The evaluator ultimately writes a report with an official custody recommendation, which can be pivotal to the judge's decision.

Step 5: Pre-trial conference

This conference is your last chance to discuss the possibility of settlement before trial.

If you decide to settle, you'll discuss the terms, and the judge may sign to create an order immediately. (If so, jump to Step 7.)

If you cannot settle, the conference focuses on the witnesses and evidence the parties will present, among other trial-related matters.

Step 6: Trial

If you are unable to settle, you will ultimately end up in trial.

In a trial, both parties have the opportunity to explore evidence and question witnesses in front of the judge so he or she can issue a ruling.

A trial can last hours, days, weeks or — in extremely complicated cases — months. Often there's a significant waiting period between days of testimony since court calendars fill up and lawyers need time to gather evidence.

Possible: Lincoln hearing

After trial but before the final order, the judge may call the child to testify in a Lincoln hearing.

Also called an in-camera (in-private) hearing, this is an opportunity for the child to express feelings about the case without pressure from parents.

Only the child, judge, attorney for the child and a stenographer are present for the hearing, which is held in the judge's chambers. The transcript cannot be viewed by parents, their lawyers or the public.

Step 7: Final custody order

To bring the custody process to a close, a judge will sign a final custody order. In the form of a parenting plan, it lays out the legal terms all parties must follow until the child involved turns 18 or is emancipated. The details are decided either by a judge after a trial or by the parties themselves through settlement.

If a parent has reason to contest a court's decision, they can appeal to a higher court and begin the legal process again.

As children grow older and their lifestyles change, orders often need to be modified several times. Parents can develop a new parenting plan together or one can request that the court modify the existing plan.

If the other parent doesn't follow a court order, you should keep detailed notes of the violations. For serious or repeat violations, you can contact police or file for contempt with the court.

Throughout your case

During the custody process, you may need to create a parenting plan, draft custody schedules, track your time with your child, keep a log about interactions with the other parent, and more.

The Custody X Change app enables you to do all of this in one place.

With a parenting plan template, custody calendars, a digital journal and beyond, Custody X Change makes sure you're prepared for whatever arises in your journey to child custody.

Throughout your case, take advantage of our technology to stay on top of all the moving parts.

Custody X Change is software that creates customizable parenting plans and custody schedules.

Make My New York Plan Now

Custody X Change is software that creates customizable parenting plans and custody schedules.

Make My Plan

Custody X Change is software that creates customizable parenting plans and custody schedules.

Make My New York Plan Now

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