Understanding Child Custody Laws

If you need to formalize your custodial arrangement, or need to change your existing arrangement, that process most often begins with filing a petition for custody and visitation in the County Family Court where your child resides. Our attorneys are available to assist you in all aspects of the child custody and visitation process. This includes custody petitions, custody modification petitions, petitions for enforcement of orders of custody and visitation, and family offense petitions. Also, in limited circumstances, grandparents or siblings can petition for custody and visitation of children.

New York’s custody laws are designed not only to look at situations in the past but also to look at the parents’ future ability to act in the best interest of the children. Because each custody case is different, it is important to have a Buffalo child custody attorney who understands this extremely sensitive matter and will give your case his or her personal attention. While each case is judged on its merits, there are certain factors the court will evaluate in determining initial custody.

Common Types of Custody

“Pendente lite” or temporary custody is issued by the court once your petition has been filed with the court, but before the trial or final resolution of your case. Pendente lite literally means “pending the trial” and this term is usually used in Supreme Court. In Family Court, it is usually referred to as “temporary custody.” At the conclusion of your case, any pre-trial temporary orders are replaced with a final order, which may or may not be similar to the temporary order.

“Physical custody” (sometimes referred to as “residential custody”) refers to where the child physically resides, and/or spends his or her time. The parent physically residing with the child more than 50 percent of the time is deemed to have “primary physical custody” of the child and is referred to as the “custodial parent.” The non-custodial parent will more often than not receive rights to visitation with the children. There are various ways in which an attorney can work with you to develop an arrangement that works for you and your child.

“Legal custody” refers to which parent has the legal authority to make major decisions involving the child such as educational, religious, and medical decisions.

“Joint legal custody” implies equal role in making major decisions and is not an indication of how much time the child spends with a parent. Joint legal custody allows both parents to have an equal role in making decisions, provided that they can work together. Equal authority also means that each parents has veto power over the decisions of the other parent. If a mutual agreement cannot be reached, sole physical and legal custody may need to be addressed.

“Shared physical custody” refers to the situation where both parents share their time spent with the children.

Common Factors in Determining Child Custody

Many factors are considered by the Court in determining child custody. Since each case is evaluated individually, there is no way to formulate a definitive list of criteria. Below are typical factors that may be evaluated:

The age and maturity level of parents: Matter of practicality if there is a large age discrepancy.

Alcohol and drug use: Former and current use, habits and any convictions or related problems.

Availability of each parent: Courts tend to favor a parent who has more time to spend with the children. If you are going through a divorce and want custody, it is important to spend as much time as possible with your children. The court will look to see who was and continues to be the primary caretaker of the child.

Financial situation of each parent: Courts tend to favor a parent who can adequately provide for the children. It is important that you do not quit your job while trying to get custody. However, Courts can also impose child support orders.

Home environment of each Parent: Courts try to place children in homes with safe and stable environments.

Disability, mental, emotional, & physical health: Relevant if it impacts how well the parent can care for children. Courts prefer an emotionally and mentally stable parent.

Siblings: Keeping siblings together is generally considered to be the best interest of the children but there are always exceptions.

Divorce: New York State has permitted no-fault divorce since 2012. However, a court may evaluate If the event that spurred the divorce or separation endangered the children in any way.

Relationship of parents: Courts try to place children with a parent that is willing to work with the other parent and encourage the relationship. Courts tend to avoid awarding custody to a parent that tries to impede visitation or the child’s relationship with the other parent.

Preferences of the children: Children are not forced to choose one parent over the other. However, if the child does have a preference, the court will typically place more weight on the child’s preference the closer a child is to age 18. The court will also examine the reason for the preference and if that is in the best interest of the child. In this situation, however, it is important not to try to influence your child’s opinions about custody. Oftentimes, attempts to influence a child’s opinions concerning custody will reflect very negatively on that parent.

Law guardian: The law guardian is an attorney assigned by the court to represent the children involved. This attorney is independent of both parties, and whose purpose is to inform the court of the children’s wishes. New laws state that in cases where a child is old enough to express his or her opinion to the law guardian, the law guardian is legally obligated to advocate for the child’s opinion in court. This is unlike the prior role of the law guardian, where the law guardian was able to substitute his or her own judgment to further the “best interests” of the children. The law guardian may give the Court a recommendation on behalf of the children.

Observable behavior: Behavior in court will be monitored closely and plays a significant factor in determining custody. Being argumentative or hostile should be avoided while being respectful, cooperative and reasonable is seen as more favorable.

Previous court judgments: Prior cases of child abuse or neglect are significantly relevant to determine custody. Prior criminal or drug activity may also bode negatively for a parent.

Collateral sources: Relevant counselors, school officials, or other family members may be asked their opinions as to which parent should have custody.

Voluntary custody agreements: An attorney could help you negotiate an agreement with the other parent. The court assumes no reasonable parent would voluntarily act against the best interest of the children. Therefore, unless there is some compelling reason, the court will honor this agreement.

Child Support

Child support refers to payments made to a parent for the children’s necessities such as food, medical expenses, education (including private schooling, resources for special-needs children, and even college tuition), health insurance, day care and living expenses.

  • To Whom Child Support is Paid
  • Court Jurisdiction
  • Duration of Child Support
  • Amount Determination
  • Child Support Modification
  • Unable to Pay Child Support
  • Refusing to Pay Child Support
  • Child Support and the Military

To Whom Child Support is Paid

Child support is paid to the parent with primary physical custody of a child in common. In cases where the two parties are not married, the paternity of the father may need to be established in court prior to the entry of an order of support.

In cases where physical custody is shared, child support could be owed to the parent with the lower income.

Court Jurisdiction

Matters of child support are usually handled in Family Court of the County in which the children reside. However, in divorce cases, decisions regarding child support can be made in the Supreme Court in the county the parent(s) reside.

Duration of Child Support

Typically, child support is paid until the child reaches age 21, unless the child is emancipated earlier.

Amount Determination

In New York, child support is based on a formula and guidelines pursuant to the Child Support Standards Act (CSSA). These guidelines consider the number of children the parent has a legal responsibility to support and that parent’s income. To set a different amount, either higher or lower, there needs to be a compelling reason to deviate from the CSSA.

Child Support Modification

The amount of child support can be modified. The Court can increase, decrease, or end support if there has been a legally recognizable change of circumstances. Other expenses such as day care or health insurance can be included in an order for child support. If either parent is experiencing extreme financial hardship the Court may modify the order. In addition, if the court-ordered custody or visitation agreement changes significantly, child support may be modified. The restriction or blocking of visitation is not a valid reason to stop paying child support. Likewise, if a parent is behind on child support, it is not a valid reason to stop visitation. Child support and visitation are two separate matters and serve two different purposes.

Unable to Pay Child Support

Sometimes there are extenuating circumstances where you are unable to pay your child support. Since child support is court-imposed, it is not wise to simply stop paying. If you are unable to pay, call your attorney to develop a course of action. To avoid possible jail time, it is best to contact an attorney as soon as possible. If you can properly establish extreme financial hardship, the Court may temporarily change the child support order.

The Court can order that support be taken directly out of a paycheck through the Support Collection Unit (SCU). If the support collection unit is collecting the support, a parent’s tax refund check could be held if they are behind with support payments. Moving out of state will not allow a parent to avoid paying child support. Voluntary unemployment (e.g., quitting your job) is also not a valid reason to stop child support.

Refusing to Pay Child Support

Unless there is a court order directing otherwise, child support should be paid. If you are entitled to child support and the other parent is refusing to pay, do not retaliate by withholding visitation, or getting into a physical or verbal confrontation. Contact your attorney as soon as possible. If you do not have a support order, but have a support agreement, a Court can help enforce the terms.

Child Support and the Military

Here at Tully Rinckey, we also understand the nuances of how employment with the military may affect your child support obligations. We understand that income for service members is reflected differently than for typical W-2 or 1099 wage earners.

Child Visitation

In many traditional parenting plans, there is only one primary residence (primary physical custody) for the children.

It is important to develop a schedule of custodial access for the other parent in order to maintain stability and security for the children. When one parent is awarded physical custody of the children, the other parent is often entitled to petition for contact, visitation, and parenting time with the children. Often, problems arise between parents in regard to visitation. It is important to retain an attorney to understand and protect your legal rights.

Because every situation and circumstance is different, it is important to work with an attorney who will provide individual attention to your matter. It is important to remember that child support and visitation are two very different matters. Even if the other parent is impeding or withholding custodial time with your children, you do not have the right to withhold child support.

Child Abuse and Neglect

The role of the family in American society is important in our nation’s history and tradition.

The law assumes that all parents want to, and do, act in their children’s best interest. Based on this assumption, parents have the right to raise their children and are responsible for adequately providing, protecting, and caring for them. Charges of child abuse or neglect are grounds for the state to interfere with these parental rights. When parents cannot meet the responsibilities that come with raising their children, the court has a right to intervene. When you or someone you know is facing this situation, it is important to get professional legal help from a qualified attorney.

Even the best of parents can be falsely accused of child abuse or neglect by a disgruntled former spouse, other parent or significant other, family member or neighbor. These charges are serious and should not be taken lightly, even when you know the accusation is untrue. It is not worth the risk of affecting your career, or losing your child. Allow an attorney to help you through this difficult situation.

Our lawyers can help in a variety of situations:

  • You and/or your spouse have been accused of child abuse/neglect.
  • You have not been accused, but are named as an “interested party” in a child abuse/neglect case.
  • Your child has been removed from a caretaker after charges of abuse or neglect, and you are seeking temporary custody of the child.
  • We can act as a neutral law guardian to represent the children allegedly abused or neglected, if appointed by the Court.

There are many different forms of child abuse and neglect:

Child abuse can be any act that endangers or impairs a child’s well-being. Child abuse can be sexual, physical, emotional or psychological.

Child neglect can be any act that deprives a child of their essential needs. As with abuse, there are different types of neglect such as physical, educational, emotional and lack of supervision.

Juvenile Delinquency

The lawyers at Tully Rinckey have experience in representing juveniles in court as well as the parents of accused children. Juvenile delinquency is the legal term for behavior that would be judged criminal if the child was an adult.

Although there are certain categories of crimes that are more typical with youth, juvenile crimes can range from misdemeanors to serious felony offenses. While these crimes are still subject to legal proceedings, they are handled differently than the same crimes committed by adults. Juvenile courts provide youth with many normal due-process rights but they are not entitled to a jury, nor can they avoid detention by posting bail. They have the right to have their parents and an attorney present before answering questions. The privacy and records of juvenile offenders are confidential. “Youthful offender” status may provide that court records are to be sealed and a youth’s record to be erased at age 21. Most juvenile court proceedings are closed to the public and media.

Parents of the accused juvenile may be required to pay fines associated with their child’s wrongdoing. Although children are expected to work to pay off any debt, parents are ultimately responsible for their fine. Fines may include payment to the court for reimbursement and victim restitution.

By U.S. Federal code, all persons under 18 years old are considered minors. However, each state has the authority to decide what age is tried in Juvenile Courts. In New York, Juvenile Courts currently only have jurisdiction of those under the age of 15; however, this will change on to age 18 effective October 2019.

Because of the sensitive nature of juvenile proceedings, you should have a lawyer experienced with handling juvenile crimes and representing parents of accused children.


In the legal field paternity is most commonly associated with child custody, child visitation, and child support.

Paternity suits can determine if a man is the biological father of a child and thus, legally responsible. It also could be used to argue ancestry for estate purposes. The attorneys at Tully Rinckey understand that paternity issues can be very sensitive in nature. We have experience in representing clients in paternity proceedings.

Some of the most common cases include:

  • The mother of a child who wishes to establish paternity in order to receive child support
  • The father of a child who wishes to establish paternity so that he may exercise his child custody and visitation rights
  • A potential or alleged father who may be ordered to pay support
  • Issues involving inheritances and estates

As determined by law, a child born to a woman during marriage is presumed to be the husband’s child. This presumes the husband has complete rights, duties, and obligations as a parent despite the fact that he may not be the biological father. A formal adjudication of paternity can be established by the Court through the process of a paternity test and can determine what rights and obligations actually exist.

In cases of an unwed mother, a man may come forward and acknowledge paternity and accept responsibility for the child, or the mother may petition the court for such a determination.

When paternity of an out of wedlock child is called into question, hospital records and birth certificates are not enough to establish lawful paternity. Paternity (DNA) testing will be used to determine parentage. While DNA tests are considered solid proof of paternity, in some cases the results are questionable and may be challenged.

No matter the family or marital matter you face, the respectful, knowledgeable and experienced attorneys at Tully Rinckey handle your legal representation with sensitivity and care. We protect your rights and fight to help you realize the legal outcomes you desire. Let us represent you today.

To schedule an initial consultation with a member from our experienced team, contact us 24 hours a day, 7 days a week, at 8885294543 or info@tullylegal.com

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