Court Process: 7 Steps to Child Custody in New York
Litigating child custody in New York consists of seven main steps. You may be able to skip or rearrange certain ones, depending on your case and county.
Mediation, collaborative law and other alternative methods for deciding custody follow their own processes.
Visualize your schedule. Get a written parenting plan. Calculate your parenting time.
Step 1: Preparation
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 parent through a process called service. The other parent will file an answer with the court.
Possible: Emergency custody hearing
If one parent might harm the child or take them out of state within the next few days, the other 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, these stay in effect until your next court date, when they can be terminated, extended or replaced by regular 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, they'll sign the Judgment of Separation, and you'll be legally separated and can 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 parent 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) there.
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...
Once the other parent has filed an answer to your divorce complaint, one of you will file a Request for Judicial Intervention. Whoever files it will pay $95 and must have a copy served on the other person.
At that point, the court schedules a preliminary conference, generally for four to six weeks into the case. Both parents 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 parents from the bench, meet with lawyers privately or ask the court attorney to speak with the parents.
If necessary, the judge will assign an attorney for the child. Pressing issues like child support and custody may cause the judge to issue temporary orders that usually last until settlement or trial.
Step 4: Discovery
Discovery is the process in which parents request and provide each other with information relevant to the case.
They exchange documents like financial records, affidavits and proposed parenting plans at scheduled appearances (family court) or 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 (unless a parent later uses it as evidence). If the other parent doesn't provide information you requested, you can file a motion for contempt.
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.
Complicated cases may require a forensic custodial evaluation, which can be requested by either parent or 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 in the judge's final decision.
Step 5: Pretrial 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 can't agree on settlement terms, the conference will focus on plans for trial, including witnesses and evidence.
Step 6: Trial
If you're unable to settle, you'll ultimately end up in trial.
In a trial, both parents have the opportunity to explore evidence and question witnesses in front of the judge.
A trial can last hours, days, weeks or — in extremely complicated cases — months. Often, there's a waiting period between days of testimony since court calendars fill up and each side needs 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 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 stenographer are present for the hearing, which takes place in the judge's chambers. The transcript cannot be viewed by parents, their lawyers or the public.
Step 7: Final custody order
To close the custody process, a judge will sign a final custody order. It lays out the rules, collectively called a parenting plan, that both parents must follow until their child turns 18 or is emancipated. The rules are decided either by a judge after a trial or by the parents 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 ask the court to decide on changes to the existing plan.
If the other parent doesn't follow a court order, take detailed notes. For serious or repeat violations, you can contact police or file for contempt with the court.
Throughout your case
The Custody X Change app enables you to do all of this in one place.
Throughout your case, take advantage of our technology to stay on top of all the moving parts.