Filing for Child Custody in New York: 6 Steps
Before you open a custody and visitation case, consider all your options for deciding custody.
- You can settle with the other parent and have a judge sign an order incorporating the terms of your agreement.
- For help reaching an agreement, you may try an alternative dispute resolution method, such as mediation, negotiation, collaborative law or parent coordination.
- The remaining option is, of course, litigating in court.
Custody X Change is software that creates parenting plans and custody schedules you can file with the court.
If you choose to represent yourself in settlement or litigation, follow the steps below to open a case. If you have an attorney or use an alternative method of dispute resolution, the person you hire may file your case for you.
Anyone who plays a pivotal role in a child's life may request custody. Non-parents must show that extraordinary circumstances require them to get custody. Either party involved can open the case.
First, determine if you'll file in family court or supreme court.
Parents seeking divorce or legal separation open their case in supreme court. They can choose to resolve custody issues as part of their divorce or separation, or they can file a separate custody case in family court, where cases often move faster. To file for divorce, you must meet the residency requirement.
Cases are considered contested when the parties disagree on one or more terms. In an uncontested case, parties agree on all terms.
All forms should be typed, double-spaced or printed legibly in black ink. If you are representing yourself, list your contact information instead of an attorney’s.
You must complete General Form-17 to petition for custody or visitation for the first time.
Determine which article of the Family Court Act applies to your case. Check the box beside:
- Article 4 for cases related solely to child and spousal support.
- Article 5 for paternity cases.
- Article 6 for standard child custody and all other cases, including domestic violence.
Note that the petitioner is the person filing and the respondent is the other parent (or whomever your custody petition is against).
You'll specify where the child lives, your relationship to the respondent and any active orders against the respondent, among other details.
You may attach a proposed parenting plan to the petition so it enters the court file as an exhibit. This will illustrate your desired arrangement to the court. If you wish to settle your case, attach a parenting plan you and the other parent have agreed upon.
If necessary, you can request a Temporary Order of Protection through the petition. You must include allegations of a criminal offense and should attach photos or other evidence. Review section three of the Family Offense Petition to see what constitutes a criminal family offense.
If disclosing your address or other identifying information would pose a risk to your (or your child's) health and safety, complete an Address Confidentiality Affidavit.
Note that in a separation or divorce, the person filing is the plaintiff and their spouse is the defendant.
The first document to complete is an index number application.
Next, complete your initiating papers: a Summons and Complaint, or, alternatively, a Summons with Notice. Leave the spots for "index number" blank; you'll fill them in when you take your papers to the court clerk. If you’re filing for legal separation, cross out "divorce" and write in "separation" instead.
A Summons notifies the defendant that they must respond or else have a judgment made without their participation. It must have a complaint attached.
A Complaint lets the defendant know why you're starting a case. You can complete the court's form (link above) or create your own. You should describe the reason (known legally as the ground) for the split.
A Summons with Notice can take the place of a Summons and a Complaint. In addition to what you’d put in a regular Summons, include a brief case description, what you want the court to grant (for example, joint custody) and the reason for the split. This can be filed without a complaint, but you’ll have to file a complaint eventually if the defendant requests one or the divorce is contested.
If you were married in a religious ceremony, you must sign a Sworn Statement of Removal of Barriers to Remarriage.
The Notice of Automatic Orders and Notice Concerning Continuation of Health Care Coverage are additional forms you'll need. You don't have to write anything, but they must be filed as an acknowledgment of the conditions.
Spouses who agree on divorce terms can complete a stipulation of settlement at this point. (If you don't agree yet, you can file a settlement at any point during the court process.) It's recommended you have a legal professional draft your stipulation of settlement, as it must be in proper form to be enforceable.
If you can’t afford filing fees, fill out a fee waiver application along with a Notice of Motion, and attach a sworn affidavit explaining your finances. Contact your court to find out what specifically should go in your affidavit and what proof of income, if any, is necessary.
Make two additional copies of all your paperwork. Then take your complaints and other types of affidavits to a notary.
Take your documents to the family court clerk. He or she will stamp them with a filing number for your case, then keep one copy and return the others to you.
Take your documents to the county clerk.
Hand in your index number application and pay the $210 fee. Then hand in your other paperwork. The clerk will stamp them with your filing and index numbers, file one copy and return the others to you.
If you've been legally separated for at least a year via a settlement agreement, you can file this agreement with your initiating papers (unless previously filed with the county clerk). This lets the court know you want the agreement's terms to carry over to your final divorce decree.
Service is the process of formally notifying the other party that you've opened a case. The server delivers copies of the papers you’ve filed to the defendant or respondent.
Except in some scenarios described below, you cannot serve the other party yourself. Instead, you can ask a non-relative, or you can hire the local sheriff or a process server. The server must be a New York resident who is at least 18.
Service should occur Monday through Saturday between 6 a.m. and 10 p.m. It cannot occur on Sundays or any day of religious observance for the person accepting service.
Afterward, the server should complete an Affidavit of Service, sign it in front of a notary, and file it with your court. This serves as proof that the other party received notice of the case.
If the server is unable to personally serve the other party, they can leave the papers in a conspicuous place, such as on the party’s front door. In this case, the server must also mail the forms with an Admission of Service for the served party to complete and file.
You have two additional options: ask the sheriff to serve the respondent at your first appearance (if the respondent attends), or mail the petition and notice of appearance.
Service must occur at least eight days before the next court appearance. Ask your court if it has any special requirements. For example, some counties require a sheriff to serve the respondent.
This is the last step in your filing. You and the respondent will both receive a summons via mail stating when and where to report for your next appearance.
The defendant must be served with dated copies of the Summons with Notice or Summons and Complaint within 120 days of the initial filing.
The defendant has 20 days after service to respond, or 30 days if served outside of New York state. If you have yet to file a complaint and the defendant serves you with a Notice of Appearance and Demand, you have 20 days after service to file a Verified Complaint. The defendant has 20 days after receipt of your Complaint to serve you with an Answer.
In an uncontested case, you can serve the defendant yourself. Give your spouse copies of the forms you’ve filed and an Affidavit of Defendant. They should complete the affidavit and have it notarized to show they won’t contest the divorce. If you're unsure whether the defendant will contest, they must be personally served as described above.
The following forms are required for both contested and uncontested cases:
- Note of Issue: File an original and two copies, and pay the $30 filing fee within 10 days of when the other party was served.
- Request for Judicial Intervention (RJI): File this and pay the $95 fee within 45 days after serving the initiating papers, or 120 days if both parties file a Notice of No Necessity.
- Statement of Net Worth (Required by some courts)
- Findings of Fact and Conclusions of Law
- Affidavits of Service: The server should file one for Findings of Fact and Conclusions of Law and another, if necessary, for the Note of Issue and Certificate of Readiness for Trial (details below).
- Judgment of Divorce
- Part 130 Certification
- Certificate of Dissolution of Marriage
In a contested case, you must also file:
- Certificate of Readiness for Trial: This form at the bottom of the Note of Issue shows the actions necessary for trial are complete.
- Matrimonial Addendum: File this with the RJI.
- Statement of Net Worth: File at least 10 days before the preliminary conference.
After you file all the paperwork, your contested case will be calendared, meaning it's slotted for a judge to review. Typically, you will have your first court date 40 days after service.
In addition to the forms required in all divorce cases, complete and file the following for an uncontested case:
- Uncontested Matrimonial Addendum: File this with the RJI.
- Affidavit of Regularity
- Affidavit of Plaintiff
- Affidavit of Defendant, if any (covered in Step 5)
If your divorce is uncontested and the defendant signs and returns an Affidavit of Defendant, complete the Uncontested Divorce Forms Packet as soon as possible. If the defendant doesn’t respond, you have 40 days after service to complete the packet.
After you file all the paperwork, your uncontested case will be calendared. If the judge finds no issues with your papers and considers the terms to be in your child's best interest, he or she will sign the Judgment of Divorce. You’ll receive notice when it's ready for pick-up.
If you’re seeking legal separation, you’ll usually have a Judgment of Separation hearing 40 days after filing a Request for Judicial Intervention.
If you're settling your divorce, file the forms required for all divorce cases along with your Stipulation of Settlement ($35 filing fee) with the county clerk. This is the end of your filing. If the judge approves your paperwork, he will sign the Judgment of Divorce.
Although not everyone does, respondents (or their attorney) can write an Answer to a custody petition or file a cross-petition. The Answer responds to allegations the petitioner made against you, or states your counterclaims for custody. A cross-petition is for litigants who contest the other party's claims for custody and want to ask for specific terms. If you receive a custody petition, you should at least file an Answer as the allegations contained in the petition can be deemed admitted if you don't.
File your Answer or cross-petition with the family court clerk. Service to the respondent must occur at least eight days before the court date the judge summons you to attend. The server must complete and file an Affidavit of Service.
The defendant in a divorce case has 20 days after receiving a Summons with Notice to contest the divorce by filing a Notice of Appearance and Demand for a Complaint, then 20 days after receiving their spouse's Complaint to file an Answer. If you were served with a Summons and Complaint, you must complete both a Notice of Appearance and Demand and an Answer within 20 days of service.
File your forms with the county clerk at the courthouse. A New York resident over 18 should mail a copy of the Notice of Appearance and Demand (and Answer, if you were served a Complaint) to your spouse or to your spouse’s lawyer, if they have one. The server should fill out an Affidavit of Service, sign it in front of a notary, and file it with the county clerk.
- Family court forms
- Divorce forms
- New York State Unified Court System’s Resource Center (help with e-filing in supreme court)
If you do not have an attorney, consider contacting a legal clinic to ensure your paperwork is completed correctly. Legal clinics can be found through university law schools or the legal aid society in your area.
The next step in the court process will be an appearance, conference or a settlement filing, depending on the court process your case follows. No matter what, take advantage of custody technology to be fully prepared.
The Custody X Change app offers tools like a parenting plan template, personalized custody calendars and a shared expenses tracker. You can use the app in many ways in New York: to negotiate, prepare evidence, file for settlement and more.
Be prepared for every step of your case with Custody X Change.
Custody X Change is software that creates parenting plans and custody schedules you can file with the court.