USA – NEW YORK Law and Practice Contributed by: Eleanor B. Alter, Adam John Wolff, Jenifer J. Foley and MaryJane Gurriell, Alter Wolff Foley & Stutman LLP
Alter Wolff Foley & Stutman LLP 810 Seventh Avenue Suite 3600 New York New York 10019 USA
Tel: +1 212 218 5375 Fax: +1 212 218 5399 Email: info@awfs.nyc Web: www.awfs.nyc
1. The Care Provider’s Ability to Take Decisions About the Child 1.1 Parental Responsibility Legal custody, as governed primarily by the New York Domestic Relations Law (DRL) §§ 70 and 240 and the Family Court Act § 651, carries with it the right and authority to make major decisions in a child’s life, including decisions about education, healthcare, and religious upbringing. 1.2 Requirements for Birth Mothers Under N.Y. Dom. Rel. Law § 70, either parent of a minor child residing in New York may apply to the Supreme Court for a determination of custody, with the court awarding the natural guardianship, charge and custody of such child based on the best interests of the child. Section 240 of the Domestic Relations Law similarly empowers courts to enter orders for cus - tody in divorce proceedings. The Family Court Act § 651 grants the Family Court concurrent jurisdiction to determine custody and visitation of minors. 1.3 Requirements for Fathers See 1.2 Requirements for Birth Mothers . 1.4 Requirements for Non-Genetic Parents In New York, a non-genetic parent who has not adopt - ed a child may not automatically have the right to seek legal custody. Before a court may even consider the merits of a custody petition, a non-genetic par - ent must first establish standing — the legal right to
bring the petition at all. New York law recognises two primary pathways for a non-genetic parent to estab - lish standing: (i) the pre-conception agreement test established by the Court of Appeals in Brooke S . B . v Elizabeth A . C . C ., 28 N.Y.3d 1 (2016), which applies to former partners who agreed to conceive and raise a child together; and (ii) the extraordinary circumstances doctrine from Matter of Bennett v Jeffreys , 40 N.Y.2d 543 (1976), which applies to all other non-parents, including stepparents, relatives, and caregivers. Once standing is established, the court proceeds to determine custody based on the best interests of the child. Alternatively, a non-genetic parent may avoid the standing hurdle entirely by completing an adop - tion under N.Y. Dom. Rel. Law § 110, which confers full legal parentage. 1.5 Relevance of Marriage at Point of Conception or Birth Parents who are married at the time of conception or birth of a child have equal legal standing to petition for custody, but they do not automatically share joint legal custody. When parents divorce, New York courts have considerable flexibility in allocating decision- making authority between parents. Under joint legal custody arrangements, both parents share the right to make major decisions for the child. Under sole legal custody, one parent holds that authority exclusively. Courts may also split decision-making authority by subject matter: for example, awarding one parent final authority over educational decisions and the other final authority over medical decisions.
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