Know the Laws: New York
UPDATED September 25, 2012
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At least one of the child's parents has a right to custody, unless both parents are no longer living, or there is clear and convincing evidence that both parents are “unfit,” or other extraordinary circumstances exist. In order for a non-parent to get custody, s/he must show that:
Maybe. It is possible that a parent who has committed violence will get custody or visitation if the judge determines that it is in the "best interest of the child" to do so.
Judges generally presume that it is in the child’s best interest to see both parents regularly, so they favor providing both parents with some form of custody or visitation.* Courts will generally only deny visitation when there is substantial evidence that it would be harmful to your child.
New York state law requires that the judge consider the effects of domestic violence when making a custody determination. The domestic violence need not involve the child to be a factor. If you can prove in court that the other parent has committed domestic violence against you, the child, or any other family or household member, the judge must consider the effect of such domestic violence on the best interests of the child. The judge is not supposed to place a child in the custody of a parent who presents a "substantial risk of harm" to that child. Furthermore, the judge must specifically explain how the domestic violence factored into his/her custody or visitation decision.* However, since domestic violence is only one factor considered by the judge, it is possible that even an abusive parent will be given visitation or custody.
If the other parent has abused your child or if you believe that your child is not safe with the other parent for another reason, you can request that the visitation be supervised. The judge may award supervised visitation if the judge believes that it is in the best interest of your child. See Should I start a court case to ask for supervised visitation? for more information about the types of supervised visitation generally available.
* NY Dom Rel § 240(1)(a); see also NYS Unified Court System FAQs
A non-parent such as a grandparent, sibling, aunt/uncle, step-parent, etc., generally cannot get custody of a child except for cases of abandonment, neglect, unfitness of both parents, or other extraordinary circumstances.* See Who can get custody? for more information.
However, even if you cannot get custody, certain relatives (grandparents and siblings) may be able to get visitation. In order to get visitation as a grandparent, you must show that: