Family Court Custody Cases

New York Family Court Act Article 6 allows a parent to file a custody petition in Family Court.  The case starts by filing a petition with the Clerk of the Family Court.  The parent who files the custody petition is called the Petitioner and the other parent is called the Respondent.  The petition can request legal custody, physical residential custody, or both.  Once the case is started, the other parent needs to be served with the petition. At the first appearance, an attorney for the child is normally appointed and a future court date is set.  If no settlement is reached, then the court will set a trial date and the parties will go to a custody trial.

The Custody Petition

A sample New York Family Court Custody Petition is available on the court’s website.  The Custody Petition starts by asking for basic information, such as the child’s name, gender, date of birth, current address, and the name of the person with whom the child resides.

Next, the petition requests the parents’ addresses.  If a parent is a victim of domestic violence or fear for their safety, they can request the address remains confidential from the other party.

A parent can still file a custody petition if they are living with the other party.  There is no requirement for the parents to be living at separate addresses.

The petition then asks a parent to provide information about the military status and previous addresses of both parties.

If there is a previous order of custody in either Family Court or Supreme Court, the terms of that order need to be put in the custody petition.  A parent can file for a modification of a previous custody order using the same petition.  If the case is settled, then the terms of the settlement need to be placed in the petition.

If paternity is disputed or uncertain, the court must be made aware, and a parent can file a request for an order of filiation.

Similarly, if there is an order of protection or another custody case ongoing, that information must be included in the petition.

Finally, the petition must include why the parent believes they should have custody of the child.  This is the first chance for the parent to tell their story to the court, and the parent should take the opportunity to express why being with them is in the best interests of the child.  Experienced Family Court Attorneys Daniel Szalkiewicz & Associates P.C. will help you tell your story and file the strongest petition possible.

Once the custody petition is filed in New York Family Court, the case is assigned a docket number and file number.

Request for Temporary Custody

A parent does not need to wait for the other parent to respond to the petition to be granted temporary custody of the child.  In certain circumstances, parents are able to file for immediate custody of their child.  The relief can be asked for in a separate motion or in the custody petition.

Service of the New York Custody Petition

A custody petition needs to be served on the other parent.  This can happen through the marshal or a private process server.  A parent cannot serve the petition on the other parent themselves.  Unless ordered by the court, the other parent needs to be personally served with the petition.  This means it needs to be placed in their hand and cannot be accomplished by substitute service.

Serving a petition can be very scary since it initiates the court process and is often the first time the other parent learns about the court date.  We recommend that you serve the petition on the other parent outside your presence.

Appointment of an Attorney for the Child

After the filing the custody petition, the judge will appoint an attorney for the child.  The attorney for the child’s job is to represent your child and will appear in court on their behalf.  The attorney for the child is not your lawyer.  If there is more than one child involved, and the children have different positions, the court may appoint more than one attorney for the children. 

Depending on the parent’s financial situation, the attorney for the child will either be paid for by the court system or by the parents.

Cross Petition for Custody in Family Court

Even though one parent filed for custody does not mean the other parent is precluded from doing the same.  A respondent can always file a cross petition for custody.  A cross petition looks the same as a regular petition, and needs to include all of the same information, including why you believe it is in the best interest of the child for you to have custody.

Initial Appearance in Custody Case

The first appearance in a Family Court Custody case is called a return of process.  At the first appearance, the respondent will have a chance to request a lawyer.  If the the respondent is unable to afford an attorney, the court may appoint one for them.  The appearance may be virtual or in person.  After the first appearance, another date will be set by the judge.

Discovery in Family Court Custody Cases

Discovery means requesting documents such as medical records, IP addresses, Facebook messages, or other information.

New York Family Court Custody cases are called special proceedings.  They are designed to help the parents reach a speedy resolution or quick trial date.  Because of this, discovery is not permitted in custody cases without the permission of the court. 

Appointing a Forensic in Family Court Cases

The Court will often appoint a forensic psychologist to evaluate the parents and child and provide their recommendation on custody. 

Settling Family Court Custody Cases

Experienced Family Court attorneys such as Daniel Szalkiewcz and Cali Madia can help you settle your family court custody cases.  Once the petition has been filed, the parents can meet and draft an agreement that gives the parents sole custody or joint custody.  We can also help you draft agreements relating to legal custody or physical residential custody. 

Once the agreement is drafted, it is presented to the family court judge for their approval and signature.  If they sign the agreement, it becomes a court order and both parents are legally required to follow its terms.

Family Court Custody Trials

 If parents are unable to agree on custody, the family court will hold a trial.  At the trial both parents can present evidence as to why they believe it is in the best interest of the child.  Evidence needs to be pre-marked and given to the judge and other side. 

 Each parent can call their own witnesses.  Witnesses can include the child’s doctors, teachers, babysitters, caretakers, or family members.  The witnesses testify to the parents’ relationship with the child.  The witnesses are cross-examined and questioned by the attorneys. 

 At the end of the trial, the court writes a decision on the parent it believes should have custody of the child.  The decision details the findings of the court and the reasons the judge made their decision.  The decision of the court is binding.

Appealing a Family Court Custody Order

Once a court issues a custody order, either parent can file an appeal in the Appellate Division.  The Appellate Division requests the transcripts from the trial and all relevant paperwork.

It is difficult to overturn a Family Court custody order.  The Appellate Division places great weight on the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties.  It will only overturn a custody order if they lack a sound and substantial basis in the record.

Payment of Attorney Fees in a Family Court Custody Case

A parent’s custody is paramount in any separation.  Family Courts have the power to award attorney fees to a parent to help them fight for the custody of their children. Such an award requires one parent to contribute to the other parent’s payment of attorney fees. In issuing such an order, the court looks at the financial circumstances of the parties and the circumstances of the case as a whole to make sure one parent is not taking advantage of the other.

Daniel Szalkiewicz and Cali Madia are here for you

Your parental rights and the custody of your child is important to us.  We fight to protect your rights and ensure that your children receive the care they deserve.  Our attorneys have handled cases in New York, Suffolk, Nassau, Westchester, and Rockland, and can defend your rights in court.  Using our unique litigation skills and vast knowledge of technology and the law, we can help you in all situations.