Reviewed by Michael Colin Barrows, Esq.
Key Takeaways
- File a modification petition, not an appeal. An appeal cannot consider what you have done since.
- You must show a substantial change in circumstances since the order was entered.
- Documentation persuades courts. Assurances do not.
- Follow the current order exactly while your application is pending.
If you have lost custody of your child, you are likely looking to win back this custody. To learn if this is possible and the actions you can take to fight for these rights, give our experienced family law attorney a call. Continue reading to learn how child custody is determined in New York, what factors may cause a parent to lose custody, and how to regain custody of a child in New York.
First, Identify What Actually Happened
First and foremost, there are several circumstances in which custody may be lost, and the route to regain custody can vary. You may be operating under a custody order that awarded sole legal or physical custody to the other parent, your parenting time may be suspended, or a Family Court proceeding may have alleged neglect. Before you take any steps, understand what situation applies to you, as this ultimately determines the steps you must take and the court you will proceed through.
What Do New York Courts Consider When Determining Child Custody?
It’s important to understand that every custody decision in New York, including whether or not to restore custody, must be weighed against the best interests of the child standard. This essentially considers the stability of each parent’s home, who has primarily taken care of the child, the mental and physical health of each parent, the child’s preference if they are old enough to express one, and any history of abuse or neglect by either parent.
For a full set of factors and how the courts apply them, please refer to our guide to determining a child’s best interests in a New York custody case.
What Are the Reasons a Parent Would Lose Child Custody?
There are numerous reasons for a New York court to decide not to award custody to a parent. The most common reasons for a parent to lose custody in New York include the following:
- Drugs and alcohol
- The mental health of the parents
- Physical health of the parent
- Spousal abuse
- Abuse
- Neglect
- Abandonment
- Interference with visitation rights
That last item deserves emphasis for anyone hoping to regain custody. Whatever the current order says, follow it precisely. A parent who withholds a child, returns them late, or works around the schedule while a restoration application is pending hands the other side its strongest argument, and courts treat compliance with an existing order as evidence of how someone will handle a broader one.
Can I Win Child Custody Back?
When the court makes the decision to take custody away from a parent, there is always a reason behind this decision. In many cases, this reason may be something that this parent can address.
For example, a parent with a substance abuse problem may take action to take substance abuse courses among other work to prove that they are working to resolve this issue.
Build the Record Before You File
Ultimately, what will influence a court is documentation of actions, not assurances that you have remedied the issues. As such, you should keep records of everything, which may include:
- Certificates of completion from a rehabilitation or treatment program
- A steady employment record
- Attendance at counseling or therapy
- Participation in support groups
- Connecting with a sponsor
- Clean drug testing results
- Distance from other criminals or those engaged in unsafe behaviors
You should also carefully document and log all contact and communication with your child. This includes letters, emails, text messages, call logs, and even tickets to events you attended to show you maintained a consistent presence in your child’s life.
File a Modification Petition, Not an Appeal
One of the most important things you should understand about this process is that, to regain custody, you should not file an appeal, but rather a modification.
An appeal is filed on the grounds that the judge made a legal error, and is determined on the record from the original hearing, so it will not consider anything you have done since. Additionally, this must be filed within thirty days of service of the order with notice of entry in accordance with CPLR § 5513. For parents who are seeking a change in custody, an appeal is typically too late and structurally unable to assist.
Generally, the correct avenue for these matters is to seek a petition to modify an existing custody order. You will generally file it in the court that issued the initial order, explaining why the circumstances have changed, and attaching documentation. You must then serve the other parent with a copy of the petition.
The court will generally encourage both parents to reach an agreement before it intervenes. What must be established is a substantial change in circumstances since the order was entered, and that the change you are petitioning for represents the best interests of your child.
Expect Restoration to Be Gradual
Courts rarely move from restricted contact back to full custody in a single step. A successful application often produces supervised or limited visits first, expanding as the arrangement proves stable and as your child grows comfortable again. That pace can be frustrating, but treating the first order as a starting point rather than a disappointment is what gets you to the next one.
With the assistance of an experienced family law attorney, you can work towards winning back custody. Our attorneys will be able to assist you in targeting the issue that has caused you to lose custody.
To begin this process, give our family law attorney a call to learn how we will walk you through the legal steps ahead. Give us a call today to learn more about our services.
Contact Our Experienced New York Firm
Barrows Levy PLLC is a highly experienced New York law firm focused on providing quality legal services to clients in New York City and Long Island. If you need a Long Island lawyer who has significant experience handling family and estate planning matters, we are ready to help. Contact Barrows Levy PLLC to schedule a consultation with one of our experienced attorneys today.
