New York Child Custody Agreement
New York says almost nothing about what belongs in your agreement, and a great deal about how it must be signed.
Find out where you stand in New York
Where are you with the custody arrangement?
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Introduction
A New York Child Custody Agreement is a written arrangement between two parents covering where the child lives, how parenting time is divided, and who decides about health, education, and upbringing. New York is unusual among states in how little its statutes say about the substance of that arrangement. Domestic Relations Law section 240 directs a court to decide custody as justice requires and as the best interests of the child dictate, and then stops. It sets out no list of factors, no required contents for a parenting document, and no relocation rules. Section 70 adds only that neither parent has a prima facie right to custody. What New York does regulate closely is form: an agreement between spouses must be executed with the same formality as a deed to be recorded. So the practical task here is the reverse of most states. There is little to comply with in terms of content, and quite a lot to get right in terms of execution.
Key Things to Know
- 1
New York enumerates no best-interest factors by statute. Domestic Relations Law section 240(1)(a) gives the court open-ended discretion to decide as justice requires and as the best interests of the child dictate, and lists nothing further. The considerations a judge actually applies come from decided cases rather than from any provision a parent can look up.
- 2
Section 70(a) supplies the one clear statutory rule: there is no prima facie right to the custody of the child in either parent. Neither mother nor father starts ahead, and the court determines solely what is for the best interest of the child.
- 3
Nothing in New York law attaches a specific consequence to the fact that the parents agreed. There is no statutory presumption in favor of an agreed arrangement, and no provision directing a court to adopt one absent a contrary finding. Agreement is still the ordinary and sensible route, but it is not given statutory weight the way it is in some other states.
- 4
Execution formality is where New York is strict. Under Domestic Relations Law section 236(B)(3), New York requires an agreement between the parties to be in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. That means signing before a notary in proper acknowledgment form, not simply signing.
- 5
The custody terms of any such agreement remain subject to section 240. Parents can settle the arrangement between themselves, but the provisions concerning the children are made expressly subject to the court's authority, and the agreement carries legal force only once a court approves it and enters it as an order.
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There is no statewide parenting plan requirement. A former Supreme Court rule that called for a proposed custody and visitation plan has been superseded and is no longer part of the current rule, though it is still quoted in older secondary material. Individual courts may have their own local practices and forms.
- 7
Domestic violence must be considered, not merely weighed if the judge chooses. Where allegations are proven by a preponderance of the evidence, section 240(1)(a) requires the court to consider the effect of that domestic violence on the best interests of the child. Section 240(1-c) separately adds narrow restrictions keyed to specified criminal convictions rather than to domestic violence findings.
Key decisions before you file
Before you file a Child Custody Agreement in New York, a few decisions shape the document: which option to choose and what each one means. The Child Custody Agreement guide walks through them.
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New York Requirements for Child Custody Agreement
Execute with deed formality under DRL 236(B)(3)
The agreement must be in writing, subscribed by both parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Sign before a notary who completes a certificate of acknowledgment.
Custody terms remain subject to DRL 240
Provisions concerning the children are expressly subject to Domestic Relations Law section 240. The agreement does not displace the court's authority over custody and parenting time.
No statutory best-interest factors to satisfy
New York enumerates no best-interest factors. Section 240(1)(a) grants open-ended discretion, so the agreement should be drafted to be persuasive on its face rather than to tick a statutory list.
Acknowledge no prima facie right under DRL 70(a)
State that neither parent has a prima facie right to custody and that the court determines solely what is for the best interest of the child.
Allocate legal custody and decision-making
Specify whether legal custody is sole or joint and identify who decides on education, non-emergency medical care, and religious upbringing.
Set a residential and parenting time schedule
Set out where the child resides on ordinary days and allocate holidays, school recesses, and the child's birthday. New York prescribes no format, so specificity is what makes the schedule enforceable.
Preserve the DRL 240(1)(a) domestic violence duty
Where allegations are proven by a preponderance of the evidence, the court must consider the effect of the domestic violence on the best interests of the child. The agreement cannot waive that requirement.
Submit for entry as a court order
Include an undertaking to submit the agreement to the court for approval and incorporation into an order or judgment, and record that it is unenforceable as a custody order until entered.