Rights of Relatives in Family Court - English
- Definitions of key terms used in this guide
- What is the difference between custody and guardianship?
- More on the difference between custody and guardianship
- How do I get custody?
- How do I become a guardian?
- Can a parent get the child back?
- Are there special rules for relatives to get custody of a child?
- More on special rules for relatives
- How do I become a kinship foster parent?
- If I am a kinship foster parent, can I receive money from ACS?
- If my relative is in foster care, can I ask for custody?
- If I have custody, can I receive money from ACS?
- If I have custody, can I become a kinship foster parent so I can get money from ACS?
- If I have custody of my relative, can I receive child support?
- What happens if I am on public assistance?
- What happens with the child support money if I am on public assistance?
- Can I get public assistance for my grandchild or relative if I am not on it?
- As a grandparent, do I have a right to visit my grandchild?
- How do I ask for visitation?
- Can I visit my relative if he or she is in foster care?
- Resources for relative caregivers:
Custody (KUS-to-dee): To have custody means to be in charge of someone. There are two kinds of custody: physical and legal. Often, the same person has physical and legal custody – but not always.
Physical custody is when an adult is responsible for a child and takes care of the day to day needs of the child. Usually the child lives with this adult.
Legal custody is when an adult is responsible for making important decisions about the life of a child, such as medical decisions or decisions about education and religion. Only an adult with legal custody can make these decisions. An adult with legal custody is called a custodian.
Guardianship (GAR-dee-an-ship): There are two kinds of guardianship: guardianship of a person and guardianship of property. This guide deals with guardianship of a person, which is when an adult takes care of someone who is unable to take care of himself or herself. The person is usually a child. A guardian is responsible for the child, cares for the child, and makes decisions about the everyday life of the child. Guardians have physical custody and legal custody over a child.
Kinship foster care is when a relative becomes a foster parent to a child who is placed in foster care. The relative is then called a kinship foster parent. A foster parent has physical custody of the child. New York City Children’s Services (used to be called the Administration for Children’s Services or ACS, which used to be called BCW or CWA) has legal custody. ACS will give the kinship foster parent money every month for the care of the child.
In New York State, there are very few differences. However, in other states, there are big differences between the two. If you are planning to move, you should find out about the laws in the state where you are going. This will help you decide whether you want to file (ask) for custody or guardianship of the child. Some health insurance policies require the adult to have guardianship in order to provide coverage to the child. Others require legal custody. If you want the child to be covered by your health insurance, you should check to see which status the policy covers.
Sometimes courts prefer to give guardianship of a child rather than custody to people who are not parents, such as grandparents.
Everything answered about custody in this guide also applies to guardianship, unless otherwise specified.
You file a petition for custody in the borough where the child has lived for the last six months. A petition for custody is a written request to become the custodian of a child. Custody decisions can be made in Family Court or Supreme Court. In Supreme Court there is a fee to start a case; in Family Court it is free.
First, the judge will decide whether there are extraordinary circumstances. Examples of extraordinary circumstances are when a court has determined that there has been abuse or neglect; the child has been harmed by continued domestic violence in the home; or there is substance abuse in the home of the parent. It might also mean that the non-parent (a person who is not a parent) has been caring for the child for a very long time. If a grandparent has been caring for a child for two years, it is automatically considered to be an extraordinary circumstance.
If the judge decides there is an extraordinary circumstance, he or she will then decide where it will be best for the child to live. This is called best interests. If there are no extraordinary circumstances, the judge will give the parents custody.
Please note: Even though the caseworker is from ACS, it does not mean that someone has said that you have hurt your children.
To become a kinship foster parent, contact ACS. ACS is located at 150 William Street, 2nd floor. You can also call ACS at (212) 543-7692. If you know what foster care agency has care of your relative, you can also contact that agency directly.
Please note: When ACS removes a child from his or her home, the agency has to look for relatives, including grandparents, to take care of the child. Sometimes ACS cannot find the relatives. If ACS does not contact you, let the caseworker know that you would like to become a kinship foster parent for the child.
If you close your public assistance case, you MUST inform the SCU. You can then ask to have your case moved to the Family Court of the borough where the child lives. You will then receive the entire child support amount. However, if the parent paying child support has missed payments that were supposed to be made to the SCU, they will be paid first. Money the parent owes is called arrears (a-REERS). You will receive child support when all the arrears have been paid.
Note: Grandparents are the only relatives that have the right to petition for visitation in Family Court.
You must file a petition for visitation in the Family Court in the borough where the child has lived for the past six months.
After you have filed the petition, you will get a date to go back to court. This may take a couple of months. Before the court date, someone (not you!) must serve the papers on the parent who has custody of the child.
The person serving the papers must be over 18 years old and not involved in a legal part of the case. That person must sign an Affidavit (aff-i-DAYV-it) of Service. This must be notarized (NO-tar-ized). Please see the LIFT guide “Serving Court Papers.”
You must bring the affidavit to court with you.
A judge will make the decision about visitation based on what has happened in your family and what is best for the child. The judge may look at things such as the importance of the grandparent in the life of the child and if the grandparent is prepared to respect the relationship the child has with his or her parents.
- The parents decided to put the child there, or
- ACS filed an abuse or neglect proceeding.
Before you file a petition for visitation, speak with the caseworker. Sometimes the caseworker will arrange for you to visit without you having to go to court.
New York State Kinship Navigator
Weekdays (10am - 4pm)
AARP Grandparent Information Center
NYC Department for the Aging Grandparent Resource Center
2 Lafayette Street, 15th Fl.
New York, NY 10007
MFY Legal Services
Kinship Caregiver Law Project
For additional referrals in your community, please call LIFT’s Family Law Information Hotline: (212) 343-1122.