Child Custody & Parenting Time Lawyer in New York

How New York courts decide custody

New York courts decide custody and parenting time based on the best interests of the child. Domestic Relations Law (DRL) § 240(1)(a) directs the court to act “having regard to the circumstances of the case and of the respective parties and to the best interests of the child,” and provides that neither parent has a prima facie right to custody. Neither parent starts with a legal advantage.

The Court of Appeals has explained that courts weigh the totality of the circumstances and that no single factor decides a case (Eschbach v. Eschbach, 56 N.Y.2d 167 (1982)). Considerations discussed in Eschbach include the quality of each home and the parental guidance it offers, each parent’s ability to provide for the child financially and to support the child’s emotional and intellectual development, each child’s needs, any prior agreement between the parents, and the value of keeping siblings together. A child’s preference is “some indication” of best interests, weighed in light of the child’s age and maturity and the possibility that someone has influenced the child.

Safety is part of the analysis. When a parent alleges domestic violence in a sworn pleading and proves it by a preponderance of the evidence, the court must consider its effect on the child’s best interests and state on the record how it did so (DRL § 240(1)(a)). Before issuing a permanent or initial temporary custody order, the court also reviews related child protective decisions, warrants, and the statewide registries of orders of protection and sex offenders (DRL § 240(1)(a-1)).

Legal custody, physical custody and parenting time

Legal custody generally means authority over major decisions such as education, health care and religious upbringing; it can be joint or sole. Physical custody refers to where the child primarily lives. Parenting time, also called visitation or access, is the schedule the child spends with each parent. A parenting plan usually covers:

• the regular weekly schedule, with exchange times and places;
• holidays, school vacations, summer and camp;
• how major decisions are made and how disagreements are resolved;
• communication with the child and between the parents, and travel.

Schedules built around Shabbos, Yom Tov and the school calendar

For observant families, a schedule written around fixed clock times can create a conflict every Friday afternoon. We draft plans with transitions keyed to the start and end of Shabbos and Yom Tov, holiday divisions for Rosh Hashanah, Yom Kippur, Sukkos and Pesach that alternate or split by year, and terms that follow yeshiva and public school calendars and camp. Parents can also agree on religious education and observance; as with every custody term, the arrangement is measured against the child’s best interests.

Supreme Court or Family Court?

If a divorce is pending, custody is decided in the Supreme Court as part of the divorce. Parents who were never married, and married parents who are not divorcing, can file a custody or visitation petition in Family Court under Family Court Act (FCA) Article 6. Family Court applies the same best-interests standard of DRL § 240(1), with the same powers as the Supreme Court, and the Supreme Court can refer custody issues to Family Court (FCA § 651). In Family Court, a parent seeking custody has the right to counsel, including assigned counsel if he or she cannot afford a lawyer (FCA § 262).

The attorney for the child

In a contested case the court may appoint an attorney for the child (AFC). Family Court appoints AFCs under FCA § 249, and the Supreme Court may appoint one in a matrimonial case (22 NYCRR 202.16(f)(3); 22 NYCRR 7.2(a)). The AFC must advocate the child’s position (22 NYCRR 7.2(d)). If the child is capable of knowing, voluntary and considered judgment, the AFC should follow the child’s wishes even if the AFC disagrees. The AFC may take a different position only if the child lacks that capacity or if following the child’s wishes is likely to result in a substantial risk of imminent, serious harm. The AFC is the child’s lawyer, not a neutral evaluator.

Forensic evaluations

In a contested custody case in the Supreme Court, the court may appoint a psychiatrist, psychologist, social worker or other appropriate professional to evaluate the family and testify, with the cost paid as the court directs (22 NYCRR 202.18). Family Court may also order examinations by a court-designated physician, psychiatrist or psychologist (FCA § 251). An evaluation generally includes interviews with each parent and the child, observation, contact with teachers or other professionals, and a written report. The evaluator gives testimony and a recommendation; the judge decides. Preparation matters: be candid, stay focused on the child, and never coach a child about what to say.

Relocation with a child

When a parent wants to move with the child and the other parent objects, the court weighs the request on its own merits, “with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child” (Tropea v. Tropea, 87 N.Y.2d 727 (1996)). Relevant factors include each parent’s reasons, the child’s relationship with each parent, the effect on the child’s contact with the other parent, how the move may improve the lives of the child and the moving parent, and whether the relationship can be preserved through a revised schedule. See our guide to relocation and the Tropea standard.

Changing a custody order

To modify an existing custody arrangement, the parent seeking the change must show a subsequent change in circumstances such that modification is required to protect the child’s best interests (Matter of Meguira v. Smallberg, 250 A.D.3d 947 (2d Dep’t 2026)). The court looks at what has actually changed since the last order and how it affects the child. A clear record, such as school reports, calendars of the actual schedule and relevant messages, helps the court see the change.

Custody and the Beis Din

Custody and parenting time cannot be decided by binding arbitration, including arbitration before a Beis Din. In Glauber v. Glauber, 192 A.D.2d 94 (2d Dep’t 1993), the Second Department held that a court cannot be bound by an agreement on custody and visitation while acting as parens patriae for the child, although financial issues such as child support and maintenance may be arbitrated. Arbitration agreements should therefore leave custody to the court. Parents can still reach a parenting agreement with rabbinic guidance or mediation, and the court reviews it. See Beis Din arbitration and our guide to enforcing Beis Din awards.

How we handle custody matters

Custody disputes are hard on everyone, most of all the children. We focus on a workable plan, encourage communication that keeps children out of the conflict, and raise safety concerns promptly through the proper court process when they exist. Joel Yacoob personally handles every matter, and consultations are available by phone or video.

1. Consultation. We review the current arrangement, any existing orders, and your goals.
2. Documents. School and medical information, a calendar of the actual parenting schedule, relevant messages, and any prior orders or child protective records.
3. Negotiation or filing. A proposed parenting plan, or a petition or motion when agreement is not possible.
4. Interim steps. The court may set a temporary schedule and appoint an attorney for the child or a forensic evaluator.
5. Agreement or hearing. Many matters resolve by agreement; others proceed to a hearing and a decision by the court.

Unmarried parents can read our guide for unmarried couples, and parents in Article 10 cases should see Family Court and ACS defense. When parents agree on custody as part of an uncontested divorce, the fixed fee for an uncontested divorce with children is $2,000 (court filing fees not included). For a contested matter, start your case online or call (718) 975-1123 to speak with Joel Yacoob.