What to Expect at a Child Custody Hearing in New York

Going through child custody proceedings can be stressful, especially if you are not sufficiently prepared. Knowing what comes next and how to best prepare to secure the custody arrangement you desire can greatly reduce your anxiety if you are a parent fighting for custody in New York. This article will tell you everything you need to know about child custody in New York and what happens before, during, and after a custody hearing.

Who Can File for Custody in New York?

Before learning about New York custody procedures, it is important to learn about jurisdiction and ensure your case can be heard in the State of New York.

If New York is considered a child’s home state, then New York courts have authority over the custody case. The concept of home state implies that the child has been living in New York for at least six consecutive months, or less in the case of an infant who has lived in NY State since birth.

You must wait six months if you just moved to New York and want to file for custody there. Otherwise, you should file for custody in the state where you and the child previously lived.

In cases of emergency, where children may be in danger of abuse by the other parent, you may be able to file for temporary custody in New York, regardless of how long you have lived there.

There are a few other exceptions to New York’s jurisdiction rules. You should consult with an experienced New York child custody attorney to evaluate them in depth.

What Happens Before a Custody Hearing

Anyone who plays an important role in a child's life can file for custody. When you go to court seeking custody or visitation, you can opt to either hear your case in front of a Judge or be referred to mediation.

If the custody case is part of a divorce case, it is filed in Supreme Court. If it isn’t, the petitioner has to file in Family Court. Once you have filed a petition for custody, documents must be served to the other party, informing them about your filing. Finally, both parties will be summoned to attend a custody hearing.

What Happens at The First Custody Hearing?

If the parties cannot agree on custody following a petition, a custody hearing will take place. If they do agree, the Judge can enter a custody order without a custody hearing.

In The Courtroom

Typically, the hearing will be held in a small courtroom. Some people find this less intimidating than the types of large-size courtrooms used for high-profile jury trials. Despite the courtroom’s more intimate appearance, this is still a very formal occasion, and you should dress and behave accordingly.

Who Will Be at The Hearing

In order to decide based on the child’s best interests, the Judge may hear from many different people, including witnesses (relatives, nannies, family friends, neighbors, teachers), social workers, psychologists, court-appointed guardian (court investigator), your attorney and the other party’s attorney, and the attorney for the child (appointed by the Judge to represent the child).

Custody Hearing Procedure

During the custody hearing, witnesses for each side will give testimony under oath. Sometimes, the Judge may take a moment to speak to the child in private, usually in their office. The Judge will also read any relevant reports written by caseworkers who visited the child’s home.

After hearing from both sides and looking at all the information presented, the Judge will often be ready to make an order.

Factors that will likely influence the Judge’s decision include:

  • Keeping the child safe from harm
  • The child’s emotional stability
  • Ability to maintain the child’s standard of living
  • Minimal disruptions to the child’s routine
  • Fostering contact with the non-custodial parent
  • The child’s education
  • The role of each parent in the child’s life up to the hearing
  • Willingness of custodial parent to foster connections with nurturing family members

Lincoln Hearing

Sometimes, one of the parents or the judge may order the child to participate in a “Lincoln Hearing.” In this type of hearing, the child testifies before the judge without the parents being present. The Judge may request for the child to be brought to court by someone other than the parents. The idea is to get the child’s testimony with minimum parental influence. Lincoln Hearings are usually recorded and kept under seal.

Custody Hearing vs. Custody Trial

Because a Judge decides on custody in New York, the terms ‘evidentiary hearing’ and ‘trial’ are often used interchangeably.

As you can see from the procedures detailed above, the most important part of the custody hearing is preparing for it with the help of a New York custody hearing specialist. Since the Judge will look at the evidence, hear testimony, and try to make a decision on the spot, you and your attorney must carefully prepare documents, summon witnesses and experts, and thoroughly investigate any relevant matters.

How Long Do Custody Cases Take in New York?

A New York custody case may take hours, days, or months. A simple case may be settled prior to the hearing, while a complicated case can take months.

In a complex custody case involving allegations of abuse, the child’s attorney or one of the parents may request a forensic custodial evaluation by a mental health professional.

This type of evaluation can take a long time, involving interviews with the child, both parents, and other people in the child’s life. Forensic evaluators may look for signs of abuse, mental health issues, parental alienation, and other problems.

A contentious custody hearing can be a complicated affair. It is important to prepare yourself thoroughly with the help of your New York custody attorney. Unless serious abuse or neglect has occurred, antagonizing a person who will remain in your child’s life isn’t a good idea. An experienced child custody lawyer can create the best strategy to obtain the best possible outcome for you and your child.


Karen Rosenthal

Karen B. Rosenthal is a partner and co-founder at matrimonial litigation firm Bikel Rosenthal & Schanfield LLP, where she brings 30 years of matrimonial law experience to bear in matters involving high-net-worth equitable distribution, contentious custody battles, and other high-stakes disputes. Certified as an Attorney for the Child and a frequent speaker on topics related to children going through high-conflict divorce, she has been recognized as a leading New York lawyer by Super Lawyers, Best Lawyers, and New York magazine.

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