New York Custody and Parenting Plans

New York child custody law is governed by Domestic Relations Law § 240, which places the "best interests of the child" at the center of all custody decisions. Whether you're navigating custody during a divorce proceeding in Supreme Court or filing a standalone petition in Family Court, understanding New York's custody framework is essential for protecting your parental rights.

This comprehensive guide covers New York's custody types, the best interest standard, court jurisdiction, mediation through New York's Presumptive ADR program, and how custody affects child support calculations.

Types of Custody in New York

New York recognizes two types of custody, which can be awarded separately:

Legal Custody

Legal custody refers to the right and responsibility to make major decisions about your child's life, including:

• Education (school choice, special education services)
• Healthcare (medical treatment, therapy, medications)
• Religious upbringing
• Extracurricular activities
• Travel and relocation decisions

Joint legal custody means both parents share decision-making authority. Sole legal custody means one parent has exclusive authority to make these decisions.

Physical Custody (Residential Custody)

Physical custody determines where the child lives and the day-to-day parenting schedule:

• Joint physical custody: The child spends significant time with both parents
• Sole physical custody: The child lives primarily with one parent (the "custodial parent"); the other parent has visitation/parenting time
• Primary residential custody: One parent has the majority of overnights, with the other having scheduled parenting time

Which Court Handles Custody in New York?

New York is unique in that custody can be decided in two different courts:

Supreme Court (During Divorce)

If you're getting divorced, custody is determined as part of the divorce proceeding in Supreme Court. The judge will decide custody, visitation, child support, property division, and maintenance all in one case.

Family Court (Standalone Custody)

Family Court handles custody and visitation petitions when:

• Parents were never married
• Parents are separated but not divorcing
• A grandparent or other person seeks custody or visitation
• Modification of an existing custody order is needed

Important: Family Court cannot grant a divorce—only Supreme Court can dissolve a marriage. However, Family Court handles many custody matters and can issue binding custody and support orders.

The Best Interest Standard

Under DRL § 240(1)(a), New York courts must determine custody based solely on the best interests of the child. Unlike some states, New York does not have a statutory presumption for joint custody or equal parenting time.

Courts consider numerous factors, including:

1. Stability of caregiving: Which parent has been the primary caretaker?
2. Parenting history: Each parent's involvement in the child's daily life
3. Ability to cooperate: Each parent's willingness to foster a relationship with the other parent
4. Health and safety: Physical and mental health of each parent
5. Domestic violence: Any history of abuse or family offense
6. Substance abuse: Alcohol or drug issues affecting parenting
7. Child's preference: Considered when age-appropriate, though not determinative
8. Work schedules: Availability for day-to-day parenting
9. Living arrangements: Suitability of each home
10. Extended family: Relationships with siblings and other relatives

2025 Legislative Developments

Several bills are pending in the New York Legislature that could change custody law:

• Child Custody Reform Act (S5572/A3822): Would create a uniform statewide custody dispute resolution system with mandatory mediation referrals
• Shared Parenting Presumption (S4128/A4786): Would establish a presumption favoring shared parenting, with the burden on the parent seeking sole custody to prove why shared parenting is detrimental
• Temporary Custody Orders (A6151): Would create a 50/50 rebuttable presumption for temporary custody orders

These bills reflect a national trend toward shared parenting but have not yet been enacted. Current law still applies the pure best interest standard without presumptions.

Essential Parenting Plan Elements

A comprehensive New York parenting plan should address:

1. Custody Designation

• Legal custody allocation (joint or sole)
• Physical/residential custody arrangement
• Decision-making authority for specific issues

2. Parenting Time Schedule

• Regular weekly schedule
• Holiday rotation (major and minor holidays)
• School vacation schedule
• Summer parenting time
• Special occasions (birthdays, Mother's/Father's Day)

3. Communication Protocols

• Methods of parent-to-parent communication
• Phone/video call schedule during the other parent's time
• Information sharing about school, health, and activities

4. Transportation and Exchange

• Exchange times and locations
• Transportation responsibilities
• Handling schedule changes and makeup time

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Presumptive ADR and Mediation

New York's Presumptive ADR initiative refers most civil and matrimonial cases—including custody disputes—to mediation early in the process:

• Early referral: Courts refer cases to mediation at or shortly after the Preliminary Conference
• Voluntary settlement: Participation is encouraged but settlement is not mandatory
• Confidential process: Mediation communications are privileged
• DV exclusions: Cases with credible domestic violence allegations or severe power imbalances may be excluded

Many Judicial Districts have dedicated matrimonial mediation programs with court-approved mediators.

Domestic Violence Considerations

New York takes domestic violence seriously in custody determinations. Under DRL § 240:

• Mandatory consideration: When domestic violence is alleged and proven, courts must consider its effect on the child's best interests
• Orders of protection: Available through Supreme Court (DRL § 252) or Family Court
• Address confidentiality: DRL § 254 allows courts to seal addresses when disclosure poses safety risks
• Address Confidentiality Program: Survivors can use a substitute address for court records
• No forced mediation: DV cases are generally excluded from Presumptive ADR

Child Support Connection

Your custody arrangement directly affects child support calculations. Under the Child Support Standards Act (CSSA) in DRL § 240(1-b):

• Percentage formula: 17% (1 child), 25% (2), 29% (3), 31% (4), 35%+ (5+) of combined parental income
• Income cap: $183,000 combined parental income (as of March 1, 2024)
• Pro rata allocation: Support is allocated based on each parent's share of combined income
• Add-ons: Childcare, health insurance, and educational expenses may be added

Use the NY Courts Maintenance & Child Support Tools for current worksheets and calculators.

Modifying Custody Orders

Custody orders can be modified when circumstances change:

• Substantial change of circumstances: Must prove circumstances have changed significantly since the original order
• Best interest analysis: Court must find the modification serves the child's best interests
• File in originating court: Generally, modifications are filed where the original order was entered
• Emergency modifications: Available when the child faces immediate risk

Who Can Seek Custody in New York?

Under New York law, the following may file for custody:

• Parents: Either biological or adoptive parent
• Grandparents: May seek visitation (and sometimes custody) under certain circumstances
• Persons with substantial connection: Someone who has had a significant relationship with the child may petition for custody

Key Takeaways

• Best interest standard: DRL § 240 requires courts to focus solely on the child's welfare
• No presumption: New York currently has no statutory presumption for joint custody or equal time
• Two courts: Supreme Court handles custody in divorces; Family Court handles standalone petitions
• Legal vs physical custody: Can be awarded separately (joint legal, sole physical is common)
• Presumptive ADR: Courts encourage mediation but settlement is voluntary
• DV protections: Extensive safeguards for domestic violence survivors
• CSSA support: Guideline percentages apply up to $183,000 combined income
• Pending legislation: Bills proposing shared parenting presumption are under consideration

For more information about New York divorce processes, see our New York divorce timeline and filing checklist. For property division information, review our New York marital property guide.