Special Circumstances in New York Child Custody

No two child custody cases are the same. Find information below on circumstances that may arise during your case.

Custody X Change is software that creates parenting plans and schedules to meet your special circumstances.

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History of crime, violence or substance abuse

Parents who have a history of crime, violence or substance abuse are less likely to be awarded custody than parents who do not. Judges consider convictions or corroborated allegations when deciding the custody arrangement in the best interest of a child.

Litigants can access police records, court documents and arrest records to prove claims of behaviors that could impact a parent's case for custody. A judge is highly unlikely to award custody to a parent with recent convictions, ongoing investigations or active orders of protection against them.

Although judges usually approve parenting plans that are agreed upon by parents, they are more likely to intervene when these sorts of complicating factors are involved.

Still, outcomes for parents with a history of crime, violence or substance abuse can vary. All of the below are possible:

  • Sometimes these parents are awarded visitation ― often supervised visitation (explained below) ― because New York aims to give children contact with both parents whenever it's healthy.
  • If the parent can prove he or she is reformed, the parent may still be able to gain custody.
  • Courts may also mandate therapy, classes or drug testing for parents.

If you have a history of crime or substance abuse, you'll need an attorney to prove your parental fitness.

The attorney may advise you to have your record sealed. Sealed records still exist, but qualifying case material, like fingerprints and mugshots, are returned to you or destroyed. You must meet the criteria to have your record sealed.

Furthermore, you can provide proof of active involvement in rehabilitation programs, or medical records to prove sobriety.

Witnesses can be crucial to proving your changed behavior. A parole officer, sober coach or other party with knowledge of your dedication to leading a crime-free, drug-free life may aid your case. The judge will want to see that you've gone a considerable amount of time without trouble.

If one parent accuses the other of troubling behaviors during court proceedings, the judge will order an evaluation (conducted by a mental health professional), or an investigation (conducted by an attorney for the child, Child Protective Services or law enforcement). A case cannot proceed to trial until the evaluator's report is complete.

Special arrangements can be made for parents who have had violent relationships. During alternative dispute resolution, parents are able to meet separately with mediators and parent coordinators. During litigation, parents may meet separately with evaluators. Later, parenting plans and court orders can ensure the parents' safety via monitored exchanges (details below).

False accusations in a custody and visitation case are taken seriously. Anyone ― a parent, witness, attorney, etc. ― found to have knowingly made false claims of child abuse or neglect to a court can be charged with a misdemeanor or ordered to pay the accused person's legal costs. Beyond that, lying under oath is a felony that can come with jail time or fines. Parents discovered making false claims likely hurt their requests for custody and can be brought back to court to have final custody orders changed.

Supervised visitation

If a judge finds evidence that a child's health or safety are at risk, they may order supervised visitation. This means the child can only spend time with the non-custodial parent when a neutral third party is present. The court specifies the time and length of the visits, and mandates who supervises the visits and where they take place.

Situations that may call for supervised visitation include:

  • When there's a history or allegation of domestic violence, child abuse, neglect or substance abuse
  • When there's concern the parent may kidnap the child
  • When the parent has a mental illness
  • When the parent and child do not have an existing relationship
  • When the parent and child have had a long separation

In New York, every supervisor must be court-approved. The supervisor will be named on your court order. They can be a mental health professional, a representative from a victim support agency like Safe Horizon, or someone the parents agree on. When there are concerns about domestic violence, child abuse, sexual abuse or neglect, a professional supervisor is strongly advised.

Mental health professionals oversee therapeutic supervised visits. The professional will observe and monitor the visit while working to improve the relationship between parent and child.

Besides this difference, all providers have the same responsibilities. They must be present for the child's entire visit with the parent, pay close attention to the conversation and body language of both people, and interrupt or end the visit if they have concerns. They are always required to report suspected child abuse.

Monitored exchanges

An exchange is when one parent hands the child off to the other. The court will required that exchanges be monitored by a neutral third party if the well-being of the child or a parent is in question. Courts may also order that exchanges happen at a safe place like a police station, school or library.

Parental alienation

Parental alienation occurs when one parent attempts to distort their child's relationship with the other parent through lies and manipulation.

An official custody evaluation ― complete with interviews, observation and psychological tests ― is usually necessary to confirm parental alienation. If identified, the evaluator will often recommend therapy for the family members involved, as well as gradually-increasing parenting time or even sole custody for the alienated parent.

Talk to an attorney if you need to prove or disprove parental alienation, as it is a serious and complex allegation.

Uncertain paternity

Proof of paternity allows a father to file for custody or visitation and gives him the responsibility of paying child support if he is the non-custodial parent.

Parents can sign an Acknowledgement of Paternity at the hospital after the child's birth or later at the local child support office or birth registrar.

If one party refuses to sign, the other can bring a case to family court by filing a paternity petition. After a hearing, the court will issue an Order of Filiation naming the child's biological father. Then a child support case automatically begins.

In a paternity case, the petitioning party is generally responsible for the cost of DNA or genetic marker testing. If the party cannot afford to pay, either a public health officer conducts the test or social services covers the cost. In some cases, the judge orders the losing party to pay or both parties to split the cost.

Co-parenting counseling and parenting education

Judges can require parents to complete co-parenting counseling or parenting education classes as part of final custody orders. Parents can also elect to do these sessions.

New York's Parenting Education and Awareness Program serves to educate parents on how their divorce or separation affects their children. Through the program, parents learn how to guard their children from parental disputes and prepare children for familial changes.

For help finding a parenting educator or counselor in your area, refer to the program's list of certified providers or contact your family court.

Parenting coordinators can also counsel parents on how to communicate with one another and settle parental disputes to protect the children from conflict.

Grandparent visitation or custody

In New York, grandparents have visitation rights. Before the court grants them a visitation order, grandparents must prove that it's necessary.

A grandparent may file for visitation if the child's parents are preventing him or her from having a relationship with the child. As with other child-related decisions, visitation must be in the child's best interest. Grandparent visitation orders cannot interfere with parental visitation schedules.

In extraordinary circumstances when grandparents believe parents are unfit, they may petition for custody.

To be awarded custody, grandparents should seek to prove one or more of the following:

  • Parental unfitness;
  • Child abuse or neglect;
  • Surrender of parental rights; or
  • That the child has lived with the grandparents for an extended period

If you're a grandparent seeking visitation or custody, consult an attorney. The court process will be complex, especially if parents contest.

Foreign languages

Official court business is conducted in English. Foreign language speakers and the hearing impaired may request a free interpreter. Interpreters must be employed by the state or listed on the state's registry.

New York employs interpreters in over 100 languages, including Albanian, American Sign Language, Arabic, Bengali, French, Italian, Korean, Polish, Punjabi and Spanish.

Some counties have interpreters available in the courthouse daily. For example, New York City family courts have interpreters of Albanian, American Sign Language, Creole, Chinese (Cantonese and Mandarin), Spanish and Russian ready.

If you need an interpreter, notify the chief clerk's office as early as possible. Another option is to contact the Office of Language Access for a referral (or to file a complaint against an interpreter).

Addressing special situations in your parenting plan

Your parenting plan should be unique to your family and reflect your specific needs.

If a lawyer or mediator is writing your plan, it's important you share with them any circumstances the plan should address.

If you're writing your own plan, you have the flexibility to include what you want. But — the plan needs to follow a format the judge will understand, as well as use airtight language that leaves no room for interpretation.

The Custody X Change parenting plan template walks you through common provisions, while letting you enter as many custom provisions as you want. It's a sure way to get a plan that's tailored to your family AND meets court standards for formatting and language.

Custody X Change is software that creates parenting plans and schedules to meet your special circumstances.

Make My New York Plan Now

Custody X Change is software that creates parenting plans and schedules to meet your special circumstances.

Make My Plan