Family Court in New York: What Survivors Need to Know (Custody, Article 8 & Support)

The New York legal system is complex because it splits family issues between two different courts. Family Court handles custody, visitation, orders of protection, and child support, but it cannot grant a divorce. Supreme Court handles divorces (matrimonial actions) which cover all the above plus property division.

Regardless of which court you are in, New York law (Domestic Relations Law § 240) mandates that the safety of the child and the parent is the priority. Here is what survivors need to know.

1. "Article 8" Family Offense Petitions

In Family Court, you do not "press charges" (that is for Criminal Court). Instead, you file a "Family Offense Petition" under Article 8 of the Family Court Act.¹

• The Goal: To get an Order of Protection (OP).

• Stay Away vs. Refrain From:

  • "Stay Away": The abuser cannot go near you, your home, or your job.²

  • "Refrain From": The abuser can be near you but must not harass, assault, or threaten you. (Survivors should generally push for a full "Stay Away").

• Process: You can often get a temporary order (TOP) on the same day you file, without the abuser present.³ A final order lasts 2 to 5 years (depending on severity "aggravating circumstances").⁴

• Crimes Included: You must allege specific acts like Harassment, Stalking, Menacing, Assault, or Disorderly Conduct.

2. Custody & The "Domestic Violence Factor"

New York does not have a presumption of "50/50" custody like some other states.

• The Law (DRL § 240(1)(a)): The court must consider the effect of domestic violence on the child.⁵

• Burden of Proof: You must prove acts of domestic violence by a "fair preponderance of the evidence." If proven, the court must weigh this heavily against awarding custody to the abuser.

• Kyra's Law Context: Legislative efforts (like the "Kyra's Law" bills debated through 2024-2025) have pushed courts to prioritize child safety assessments before considering visitation.⁶ You should ask your attorney how recent judicial training on coercive control impacts your specific judge.

3. The Attorney for the Child (AFC)

Formerly called a "Law Guardian," this is a lawyer appointed by the court to represent your child.⁷

• Their Power: They are incredibly influential. Judges often follow the AFC's recommendation.

• Their Role:

  • If the child is capable (usually age 7+), the AFC must advocate for what the child wants, even if it’s not "best."⁸

  • If the child is very young or lacks capacity, the AFC advocates for the child's best interests.⁹

• Tip: Do not coach your child, but do ensure the AFC is aware of the history of violence so they can understand why a child might be fearful (or conversely, manipulated).

4. Forensic Evaluations

In contested custody cases, the judge often appoints a Forensic Evaluator (a psychologist) to interview everyone and write a report.

• The Danger: Evaluators can be biased or untrained in domestic violence dynamics. They may misinterpret your trauma as "instability" or "alienation."

• Preparation: It is critical to prepare for these interviews. stick to facts, provide documentation, and avoid purely emotional attacks on the other parent.

5. Child Support (CSSA)

New York uses the Child Support Standards Act (CSSA).

• The Formula: It is a strict percentage of the combined parental income (up to a "cap," often around $183,000, though this adjusts):

  • 1 child: 17%

  • 2 children: 25%

  • 3 children: 29%

• Add-Ons: The non-custodial parent must also pay their share of child care (daycare) and medical expenses on top of the base percentage.¹⁰

6. Address Confidentiality Program (ACP)

• What it is: A state program that gives you a substitute address (a PO Box in Albany) to use for court papers, schools, and driver's licenses.¹¹

• Court Use: If you are in the ACP, the court must keep your address confidential.¹² Even without the ACP, you can ask the Family Court Clerk for an "Address Confidentiality Order" (General Form 21) if revealing your address poses an unreasonable risk to your health or safety.¹³

Frequently Asked Questions (FAQ)

Q1: Can I record my spouse's threats in NY?

Yes. New York is a "One-Party Consent" state. You can legally record a conversation you are participating in without the other person's knowledge. These recordings are often admissible in Family Court to prove verbal abuse or threats that leave no physical marks.

Q2: Will I get into trouble if I leave the home with the kids?

It depends. If there is no court order, leaving to flee violence is generally protected, but you should file a petition for custody immediately (the next court day). If you flee to another state, you must be very careful about the "UCCJEA" laws—New York keeps jurisdiction for 6 months.

Q3: Does the child get to decide who they live with?

No. There is no "magic age" (like 12 or 14) where a child decides. However, the older the child, the more weight the court (and the AFC) gives to their preference.

Q4: Do I need a police report for an Order of Protection?

No. Police reports (DIRs) are helpful evidence, but not required. You can testify to the violence yourself. Medical records, photos, and texts are also evidence.

Q5: What is "ACS" and why are they involved?

ACS (Administration for Children's Services) investigates claims of child neglect.14 In DV cases, abusers sometimes call ACS to harass the victim. Conversely, if you are being abused and fail to protect the child from witnessing it, ACS can charge you with "failure to protect." It is vital to show you are taking steps (like seeking an Order of Protection) to keep the child safe.

Q6: What if I can't afford a lawyer?

Assigned Counsel: In Family Court (custody and family offense cases), you have the right to a free attorney (18-B Panel Lawyer) if you are financially eligible. Ask the judge for an "assignment of counsel" at your first appearance.

References & Resources

• NYS Domestic & Sexual Violence Hotline: 1-800-942-6906.¹⁵

• Office for the Prevention of Domestic Violence (OPDV): opdv.ny.gov.

• LawHelpNY: Excellent plain-language guides and "DIY" forms.

• Safe Horizon: Court programs and shelter assistance in NYC.

• Legislation: Family Court Act Article 8, Domestic Relations Law § 240.