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
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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.
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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.
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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.
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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.
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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.
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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
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.
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.
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.
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.
Specify whether legal custody is sole or joint and identify who decides on education, non-emergency medical care, and religious upbringing.
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.
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.
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.
Frequently Asked Questions
No. Domestic Relations Law section 240 directs the court to decide as justice requires and as the best interests of the child dictate, and then lists nothing. Section 70 and Family Court Act section 651 add no list either. The considerations a judge weighs are drawn from decided cases rather than from any statutory checklist.
It helps practically, because an uncontested arrangement is far quicker and cheaper than a contested one. It does not carry a specific statutory advantage. New York has no provision giving an agreed arrangement a presumption in its favor, and none directing a court to adopt what the parents filed unless it makes a contrary finding.
Under Domestic Relations Law section 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. In practice that means signing in front of a notary who completes a proper certificate of acknowledgment. Simply signing the document is not enough.
Yes. The provisions concerning the children are expressly subject to section 240, and the arrangement becomes enforceable only when a court approves it and enters it as an order or incorporates it into a judgment. Until then it is not enforceable as a custody order or be held in contempt for departing from it.
No statewide one. New York has no statute and no current statewide court rule prescribing the contents of a parenting document. An older Supreme Court rule requiring a proposed custody and visitation plan has been superseded, although it is still quoted in some secondary sources. Individual courts may use their own local forms.
No. Section 70(a) states that there is no prima facie right to the custody of the child in either parent. The court decides solely on the best interests of the child, without a starting preference for either parent.
Because New York prescribes no contents, the practical checklist comes from what parents need to settle: legal custody and decision-making authority, physical custody and a residential schedule, holidays and school recesses, arrangements for exchanges and travel, how the parents will communicate, and how future disagreements will be handled.
Where allegations are proven by a preponderance of the evidence, section 240(1)(a) requires the court to consider the effect of the domestic violence upon the best interests of the child. Section 240(1-c) separately sets out narrow restrictions keyed to certain criminal convictions rather than to domestic violence findings. If there has been abuse or a protective order, this is a situation to raise with a lawyer.
Once it is a court order, changes are made by applying to the court, not by a private agreement between the parents. A side arrangement, even a written one both parents sign, does not alter an existing order.
New York sets no statutory age at which a child's wishes control, and no provision gives a child a right to choose. How much weight, if any, a preference carries is left to the court.