What does the court decide?
- Legal custody — decision-making over education, medical care, and religious upbringing. Can be joint or sole, and can be divided by subject.
- Residential custody — where the children primarily live.
- Parenting time — the actual schedule, including weekdays, weekends, holidays, school breaks, summers, and transportation.
Our fuller treatment of the standard, the factors, and what helps or hurts a parent’s position is on the Child Custody page. It applies equally here.
How does this differ from a Family Court custody case?
| Divorce (Supreme Court) | Family Court | |
|---|---|---|
| Who | Married spouses divorcing | Unmarried parents, or post-judgment issues |
| Authority | DRL §240 | FCA Article 6 |
| Context | Decided with property and support | Custody and support only |
| Standard | Best interests of the child | Best interests of the child |
After the divorce is final, later disputes about custody or support usually go to Family Court.
What happens during the divorce itself?
A temporary custody and parenting order is often entered early, and it carries real weight. A schedule that operates for a year while the divorce proceeds becomes the arrangement the children are used to, and courts are cautious about disrupting a settled routine. Treat the temporary order as consequential, because it frequently becomes the permanent one.
In contested custody matters the court will typically appoint an attorney for the child — a lawyer who represents the child directly and, in most cases, advocates for what the child wants rather than offering a neutral recommendation.
Frequently asked questions
Is custody decided in Supreme Court or Family Court during a divorce?
Supreme Court, as part of the divorce, under DRL §240. Family Court handles custody for unmarried parents and for disputes arising after the divorce is final.
Does New York favor mothers in divorce custody cases?
No. New York law provides no preference based on a parent’s sex. Courts favor continuity of care, which is a fact about a family rather than a rule about parents.
Can we agree on custody ourselves?
Yes, and most divorcing parents do. The agreement is incorporated into the judgment. The value of counsel is in the drafting — holidays, transportation, decision-making, and relocation are what generate litigation years later.
Can custody be changed after the divorce?
Yes, on a substantial change in circumstances. Those applications are generally made in Family Court.
How does custody affect child support?
Support is calculated under the CSSA with the non-custodial parent paying a pro rata share. The residential arrangement therefore drives the support calculation.
Related: No-Fault Divorce · Uncontested Divorce · Collaborative Divorce · back to Divorce
Written by Dale Riedel, Esq. · Admitted in New York, Bar No. 5837539