Child Custody in New York: Best Interests, Legal and Physical Custody, and Relocation
New York family law · Last reviewed October 7, 2026
New York decides custody under Domestic Relations Law § 240. Unlike many states, New York's statute doesn't contain a numbered list of factors. It gives the court a single standard, the child's best interests, and a few firm rules, and leaves the rest to the judge's assessment of the family.
The court makes its custody order "having regard to the circumstances of the case and of the respective parties and to the best interests of the child." Custody can be decided in the divorce in Supreme Court, or, for parents who aren't divorcing, in Family Court.
Types of custody
New York's courts use two kinds:
- Legal custody: the right to make major decisions about the child's education, health care and religion. It can be joint, shared by both parents, or sole.
- Physical (residential) custody: where the child lives. One parent may have primary physical custody, with parenting time (New York's statute still calls it visitation) for the other, or the parents may share time more evenly.
No presumption for either parent
Section 240(1)(a) is plain: "In all cases there shall be no prima facie right to the custody of the child in either parent." Mothers aren't favored over fathers, and the statute doesn't presume joint custody or equal parenting time either. Joint legal custody depends on parents being able to make decisions together, so the parents' ability to cooperate matters.
What the court looks at
Because the statute doesn't list factors, judges look at the whole picture. The court system's own guidance on the child's best interests points to considerations such as:
- which parent has been the child's primary caretaker;
- each parent's parenting skills and ability to meet the child's needs, including special needs;
- each parent's mental and physical health;
- any domestic violence;
- each parent's work schedule and child-care plans;
- the child's relationships with brothers and sisters and other family;
- the child's wishes, depending on age and maturity; and
- each parent's willingness to support the child's relationship with the other parent, when that is safe.
The same guidance notes that in New York the "child's health and safety shall be the paramount concerns."
Domestic violence
The statute makes domestic violence mandatory to consider when it is proven. Section 240(1)(a):
Where either party to an action concerning custody of or a right to visitation with a child alleges in a sworn petition or complaint or sworn answer, cross-petition, counterclaim or other sworn responsive pleading that the other party has committed an act of domestic violence against the party making the allegation or a family or household member of either party, as such family or household member is defined in article eight of the family court act, and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child,
The court must also state on the record how its findings factored into its decision. If abuse of a child is proven, the court "shall not place a child in the custody of a parent who presents a substantial risk of harm to that child." And a parent who acts on a good-faith, reasonable belief that the child is being abused, neglected, or harmed by domestic violence won't lose custody based solely on that belief.
Before issuing a custody or visitation order, the court must check the state's registries of orders of protection and sex offenders and any Family Court child-protective findings (§ 240(1)(a-1)).
At what age can a child choose?
There's no set age in New York. The child's wishes are one consideration, and older, more mature children's preferences usually count for more. But the judge decides, and a child's preference never controls by itself. Children are often represented by their own lawyer, called an attorney for the child, who tells the court what the child wants.
Evaluations
In contested cases, the court can appoint a forensic evaluator to interview the family and report. Under § 240(1)(a-3), the evaluator must be a psychologist, social worker or psychiatrist licensed in New York who has completed domestic violence training within the last two years.
Moving away: relocation
New York has no relocation statute and no fixed notice period or mileage rule. If a parent wants to move with the child in a way that would affect the other parent's time, and the other parent doesn't agree, the court decides whether the move is in the child's best interests. It looks at each parent's reasons, the child's relationship with each parent, how the move would affect contact with the parent left behind, whether the move would improve the child's and the moving parent's lives, and whether a new schedule can preserve the relationship. Many custody orders and agreements include their own notice or consent requirements; check yours first.
Jurisdiction: which state decides
Under the Uniform Child Custody Jurisdiction and Enforcement Act (DRL Article 5-A), custody is usually decided by the child's home state: where the child lived with a parent for at least six consecutive months right before the case began (§§ 75-a(7), 76). Meeting New York's divorce residency rules doesn't by itself give New York the power to decide custody.
Parent education
A judge may order parents of children under 18 to attend a parent education program, but there is no statewide requirement that every divorcing parent take one, and parents aren't sent to sessions together when there are safety concerns.
Pending: Kyra's Law
In June 2026 both houses of the Legislature passed Kyra's Law (S5998-C/A6194-C), which would make a child's safety a threshold question in custody cases and add protections for parents who act in good faith to protect a child. As of October 2026 it had not been signed, and it would take effect 270 days after becoming law. Until then, the rules on this page apply.
Changing a custody order
A custody order can be modified when circumstances have changed and a different arrangement would serve the child's best interests. Courts generally look for a real change since the last order, such as a move, a change in a parent's situation, or the child's changing needs.
Frequently asked questions
Does New York favor 50/50 custody?
No. There is no presumption of joint custody or equal time. The court decides what serves the child's best interests, and neither parent has a superior right.
At what age can a child decide where to live in New York?
There's no fixed age. A child's wishes count, especially for older and more mature children, but the judge makes the decision.
How does domestic violence affect custody in New York?
When domestic violence against a parent or household member is proven by a preponderance of the evidence, the court must consider its effect on the child's best interests and explain on the record how it factored in. A parent who poses a substantial risk of harm to a child can't be given custody.
Can I move out of New York with my child?
If the move would affect the other parent's time and the other parent doesn't consent, you need the court's approval. The court decides whether the move is in the child's best interests.
Do grandparents have visitation rights in New York?
They can ask for visitation under DRL § 72 when a parent has died or "where circumstances show that conditions exist which equity would see fit to intervene." The court then decides what the child's best interest requires. Grandparents can seek custody only in extraordinary circumstances.