How to Petition for Sole Custody in New York

By Brenna Davis


Jupiterimages/ Images

Sole custody is a custody arrangement in which one parent has sole decision-making authority over the child in addition to providing the child's primary residence. The other parent is almost always awarded some form of visitation. Because custody disputes can be complex and stressful, it's wise to hire legal counsel if your ex does not want you to obtain sole custody. However, you can begin the process on your own.

About Sole Custody

Sole custody grants one parent sole legal and physical custody of the child. Legal custody governs decision-making authority, while physical custody governs where the child lives. Sole custody does not necessarily mean that the non-custodial parent never sees the child, but does significantly limit their time together. Some sole custody arrangements completely eliminate visitation altogether. Parents petitioning for sole custody should think carefully about whether the arrangement is in their child's best interests.

Sole Custody Petition

Custody and visitation matters are heard in the family division of New York state's supreme court. To file your petition, ask the clerk in the county in which the child resides for a petition for custody. Fill out the form in its entirety. State law also requires that you attach a parenting plan to this petition. Parenting plans provide details about visitation and time with each parent. The clerk can provide you a parenting plan or you can draft one yourself. Return the petition and parenting plan to the clerk and pay the filing fee.

Court-Appointed Experts

In New York family courts, the opinions of experts are given significant weight. Judges are authorized to appoint child experts to submit reports to the court or file motions on behalf of the child. A guardian ad litem -- an attorney hired to represent the child's best interests -- may be appointed to make a recommendation to the court after investigating the case. It is wise to be respectful and courteous to the guardian ad litem, even if you disagree with her. Similarly, judges may appoint psychologists to conduct mental health evaluations of each parent. You should attend all sessions with these psychologists and provide any information you have about your child's psychological state and how the custody plan you propose might improve it.

The Hearing

Judges frequently order parties in custody disputes to attend mediation with a court-appointed mediator. If you are unable to settle your case in mediation, it will be scheduled for a hearing with a judge. At the hearing, you must argue why sole custody is in your child's best interest. You may call witnesses, present evidence and question experts such as psychologists and social workers. If you are requesting sole custody without any visitation or with supervised visitation, you must demonstrate why time with the other parent is detrimental to your child. If there has been any abuse, bring police and medical reports documenting it.

Judge's Order

After hearing evidence, the judge will issue a final custody order. If you do not abide by this order, you can be held in contempt of court. The order will outline physical and legal custody and visitation. If your ex's visitation rights are completely revoked, the order may be a temporary order that allows your ex to seek visitation again after a set period of time or after your ex has completed certain requirements such as counseling or drug rehabilitation.