How To Get Nonparent Custody of a Child in New York

Adults naturally protect children, even when they’re not our own. So, if you know a child who is being neglected or worse, you could easily be stirred to action on that child’s behalf, even to the point of seeking custody of the child for his or her protection. But what are the odds that you’ll be successful? The outcome of any custody battle depends on various circumstances, the strength of the evidence you present, and the quality of your legal representation. So, while it’s impossible to paint bright lines for anyone in your situation, this blog will explain the legal principles the court will apply to make its decision.

Who is the Person Seeking Nonparent Custody?

Under New York law, a parent, grandparent, or a person with a substantial connection or relationship with the child may file a petition in Family Court requesting custody. What constitutes a “substantial connection or relationship” is open to debate. Courts will inquire into the relationship's duration, nature, and quality. If the child is mature, usually 14 years of age and older, the court will solicit the child’s thoughts on the matter.

What’s Going On With the Parents?

State law is protective of parental rights. Thus, circumstances permitting a court to intervene in the parent-child relationship must be compelling. Generally, a petitioner for nonparent custody must show that one of the following circumstances exists:

  • The parent has abandoned or surrendered the child
  • The parent has neglected or abused the child
  • The parent is unfit to be a custodian or guardian of the child
  • Extraordinary circumstances justify giving the nonparent custody and would be in the best interest of the child

If the nonparent is a grandparent to whom the parent voluntarily gave the child, and the child has lived with the grandparent for 24 months continuously, the law will recognize an “extraordinary circumstance.”

To intervene against a parent, courts need to see “gross misconduct or other behavior evincing utter indifference and irresponsibility,” according to the controlling case, Adoption of L., 61 N.Y.2d at 427.

Practically speaking, this would require proof of the following:

  • Sexual abuse
  • Neglect that endangers the health and welfare of the child
  • Mental incapacity
  • Extreme physical disability
  • Anger issues leading to emotional and physical abuse
  • An immoral lifestyle that places the child in jeopardy
  • Alcohol or drug abuse

Evidence that a parent is unfit must be clear and convincing.

Petitioning the Court for Custody or Guardianship

Custody and guardianship are intertwined legal concepts. Child custody consists of two areas of rights and responsibilities:

  • Physical custody — Authority to take physical care of the child, including providing a residence, feeding, and clothing for the child and providing necessary discipline and guidance on a day-to-day basis.
  • Legal custody — Authority to make important decisions for the child’s health, welfare, education, and other matters.

Guardianship is, strictly speaking, legal custody awarded by the court. However, in practice, guardians have the same legal rights and responsibilities as custodial parents. Depending on your relationship to the child, you might simply petition for custody. An experienced child custody attorney can help you parse the legal complexities to pursue the correct course of action.

If you wish to ask the court for custody/guardianship of a child, you should consult a family law attorney who can help you prepare the petition, along with any necessary affidavits.

Adoption: The Longer-Term Solution for Nonparent Custody Arrangements

Guardianship is temporary by nature and is appropriate when parents can sort out their problems and regain custody. It is also fitting when a child is approaching the age of majority and only needs supervision for a short time. But, depending on the circumstances, you might want a more permanent, legally sanctioned solution.

If you think adopting the child might ultimately be the best course of action, there are legal obstacles you must overcome. The parents must surrender their rights, or a court must terminate those rights permanently before you’ll be free to adopt the child.

Alternatives to Custody for Nonparents

Fortunately, there are many ways to care for and support a child. Even if you don’t take legal and physical custody, you can still positively influence that child’s life. Here are a few options to consider:

  • Visitation — Grandparents and siblings who cannot obtain custody may have a statutory right to visitation. To obtain an order from the court, you must show an existing close relationship and that continued contact is in the child’s best interest.
  • Foster parenting — If you need financial assistance to assume the responsibility of caring for a child, the foster care system might be the way to go. This is a bit of a circuitous route since the parents would have to voluntarily surrender the child, or a court would have to adjudicate them unfit. You would then have to work with the court and the Administration for Children's Services to obtain an appointment as a foster parent. As a foster parent, you would be entitled to a monthly payment to cover some of the costs incurred by caring for the child in your home.

An experienced family law attorney can help you explore the right options for you.

Home Studies to Determine Your Fitness as a Custodian

Whether you pursue custody, guardianship, adoption, or foster parenting, you must submit to a home study so authorities can ascertain your ability to provide an appropriate living space and a nurturing environment for the child. Licensed social workers and other individuals approved by the local court perform these investigations to help ensure the child does not go from one bad situation to another. You should obtain a Home Study Guide from an accredited organization to prepare for your home visit.

Finally, we have to say that your interest in improving a child's life is commendable. Our firm is available for counsel and representation on all related matters.


Karen Rosenthal

Karen B. Rosenthal is a partner and co-founder at matrimonial litigation firm Bikel Rosenthal & Schanfield LLP, where she brings 35 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, Crain's New York Business magazine, and New York magazine.

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