Child Custody in New York (2026)

The Lincoln Hearing in New York

One of the most distinctive features of New York custody law is the Lincoln hearing, a procedure named after the 1969 Court of Appeals case Lincoln v. Lincoln. In a Lincoln hearing, the judge interviews the child privately in chambers, outside the presence of the parents and their attorneys. The child’s attorney (known as the attorney for the child, formerly called the law guardian) is typically present, but the parents are excluded.

The purpose of the Lincoln hearing is to give the child a safe, unpressured environment in which to express their feelings, preferences, and concerns about custody and living arrangements. Children often feel conflicted about expressing a preference in front of their parents, and the private interview format reduces the risk that a child will tailor their statements to please or avoid upsetting a parent.

Lincoln hearings are discretionary — the judge decides whether to conduct one based on the child’s age, maturity, and the specific issues in the case. There is no statutory minimum age for a Lincoln hearing, though in practice they are most common for children roughly 10 and older. The substance of the interview is generally kept confidential to protect the child, though the judge may place a summary of relevant information on the record. The child’s statements during a Lincoln hearing are one factor in the best interests analysis — they do not control the outcome, particularly for younger children.

This procedure is not available in most other states, and it reflects New York’s long-standing emphasis on giving children a meaningful voice in custody proceedings while shielding them from the adversarial process.

Overview of New York Custody Law

New York custody law is governed primarily by Domestic Relations Law Section 240, which directs courts to make custody decisions based on the best interests of the child. Unlike many states, New York has no statutory presumption favoring joint custody, sole custody, or any particular arrangement. Each case is decided on its own facts, giving judges significant discretion to craft orders tailored to the family’s circumstances.

New York courts may award custody to either parent regardless of gender. The state eliminated any maternal preference decades ago, and modern case law treats both parents equally in custody proceedings.

Types of Custody in New York

New York recognizes two dimensions of custody:

• Legal custody — The right to make major decisions about the child’s upbringing, including education, healthcare, and religious training. Legal custody can be sole (one parent decides) or joint (both parents share decision-making authority).
• Physical custody (also called residential custody) — Where the child primarily lives. The parent with primary physical custody is sometimes referred to as the custodial parent. The other parent typically receives a visitation or parenting time schedule.

Joint legal custody with primary physical custody to one parent is a common arrangement in New York. True joint physical custody — where the child splits time roughly equally — is less common and is generally ordered only when the parents demonstrate a strong ability to cooperate and live in reasonable proximity to each other.

For a broader look at how these terms apply across states, see our guide on child custody laws explained. For a detailed look at how unmarried parents establish custody in New York, see our guide on custody for unmarried parents in New York.

No Presumption for Joint or Sole Custody

New York does not have a statutory presumption in favor of joint or sole custody. The court considers the totality of the circumstances and determines which arrangement serves the child’s best interests. This case-by-case approach means that the outcome depends heavily on the evidence presented — including witness testimony, school and medical records, and the observations of any court-appointed professionals.

In practice, New York courts have noted that joint custody works best when parents can communicate and cooperate effectively. When there is high conflict between the parents, courts are more likely to award sole custody to one parent to provide stability and reduce the child’s exposure to parental disputes.

Best Interests Factors

New York does not have a statutory checklist of best interests factors like some states. Instead, courts have developed a set of factors through case law. The most commonly considered factors include:

• The quality of each parent’s relationship with the child
• Each parent’s ability to provide a stable home environment
• Each parent’s willingness to foster and support the child’s relationship with the other parent
• The child’s existing relationships with siblings and extended family
• The mental and physical health of each parent
• Each parent’s work schedule and availability to care for the child
• Any history of domestic violence, substance abuse, or neglect
• The child’s wishes, depending on the child’s age and maturity
• Which parent has been the primary caretaker during the marriage
• The financial status and ability of each parent to provide for the child
• The effect of an award of custody on the child’s well-being

The primary caretaker factor carries significant weight in many New York custody decisions. Courts look closely at which parent has handled the day-to-day responsibilities of feeding, bathing, transporting, supervising homework, and attending medical appointments.

Child’s Preference

New York does not set a specific age at which a child may express a preference about custody. The court considers the child’s wishes as one factor, and the weight given to the child’s preference increases as the child matures. Older teenagers’ preferences typically receive more consideration, but a child’s wishes are never the sole basis for a custody determination.

Mediation in New York

Since 2019, New York has implemented presumptive mediation for divorce and custody cases statewide. Under this framework, parties in custody disputes are presumptively referred to mediation, with exceptions for cases involving domestic violence or other circumstances where mediation would be inappropriate. Courts across the state now actively direct parents to mediation as a standard part of the custody process.

Mediation can be especially effective in New York custody cases, where the absence of a statutory presumption means that a negotiated agreement often gives parents more control over the outcome than leaving the decision to a judge. For more detail on the custody determination process, see our guide on how child custody is determined.

Grandparent Visitation Rights

New York provides grandparents with standing to petition for visitation rights under DRL Section 72. A grandparent may petition when either or both parents are deceased, or when “circumstances show that conditions exist which equity would see fit to intervene.” The court then applies a best interests analysis to determine whether visitation with the grandparent serves the child’s welfare.

This is a broader standard than many states provide, though the U.S. Supreme Court’s decision in Troxel v. Granville (2000) requires courts to give special weight to a fit parent’s wishes regarding visitation. For more detail, see our guide on grandparent visitation rights in New York.

Relocation Rules

When a custodial parent wants to relocate with the child, New York applies the framework established in Tropea v. Tropea (1996). The court considers the totality of the circumstances, including:

• The reason for the proposed move
• The quality of the child’s relationship with each parent
• The impact of the move on the child’s relationship with the non-custodial parent
• The feasibility of a revised visitation schedule
• The economic necessity or benefit of the move
• The child’s preferences

There is no fixed mileage threshold that triggers a relocation analysis. Any move that would substantially impair the non-custodial parent’s ability to exercise visitation may be subject to court review. The burden is on the relocating parent to demonstrate that the move serves the child’s best interests.

Modification of Custody Orders

Either parent may seek to modify an existing custody order by showing a significant change of circumstances since the last order was entered. New York courts are generally reluctant to disrupt stable custody arrangements unless the change is substantial enough to warrant revisiting the child’s best interests.

Common grounds for modification include a parent’s relocation, a change in the child’s needs, evidence of parental unfitness (such as substance abuse or domestic violence), or a material change in the parents’ living situation.

When to Seek Legal Help

New York’s case-by-case approach to custody means that the quality of the evidence you present — and how effectively you present it — can make a significant difference in the outcome. If your case involves a Lincoln hearing, relocation, domestic violence, or significant disagreements about parenting, working with an experienced New York family law attorney is strongly recommended.

If you are not sure where to start, consider scheduling a free consultation to discuss your situation with a qualified family law professional.

Frequently Asked Questions

Does New York have a presumption for joint or sole custody?

No. New York has no statutory presumption favoring joint custody, sole custody, or any particular arrangement. Each case is decided on its own facts under Domestic Relations Law Section 240, giving judges significant discretion.

What is a Lincoln hearing in New York?

A Lincoln hearing (named after Lincoln v. Lincoln, 1969) is a procedure in which the judge interviews the child privately in chambers, outside the presence of the parents. The child’s attorney is typically present, but the parents and their attorneys are not. The substance is generally kept confidential.

Does the primary caretaker factor matter in New York custody cases?

Yes. The primary caretaker factor carries significant weight in many New York custody decisions. Courts look closely at which parent has handled day-to-day responsibilities such as feeding, bathing, transporting, supervising homework, and attending medical appointments.

How does New York handle relocation cases?

New York applies the framework from Tropea v. Tropea (1996), considering the totality of the circumstances including the reason for the move, the quality of the child’s relationship with each parent, and the feasibility of a revised visitation schedule. There is no fixed mileage threshold that triggers a relocation analysis.

What is a Lincoln Hearing and will my child have one?

A Lincoln hearing is a private interview between the judge and your child, conducted in the judge’s chambers away from both parents. The child’s attorney is usually present. The judge uses this conversation to understand the child’s feelings and preferences about custody. Whether your child will have one depends on the judge’s discretion — it is more common when children are roughly 10 or older, when the case involves significant custody disputes, or when the judge believes the child’s perspective would be valuable. You cannot demand a Lincoln hearing, but you can request one through your attorney. The content of the interview is generally kept confidential to protect the child.

How This Guide Was Researched

This guide was developed through a comprehensive review of New York Domestic Relations Law Sections 70 (habeas corpus for custody) and 240 (custody and best interests standard), along with key case law including Lincoln v. Lincoln (24 N.Y.2d 270, 1969) on in-chambers interviews and Tropea v. Tropea (87 N.Y.2d 727, 1996) on relocation analysis. The 2019 presumptive mediation initiative was verified through administrative orders from the New York State Unified Court System. Grandparent visitation standing was confirmed under DRL Section 72. Procedures and forms were cross-referenced with the NY CourtHelp family law portal.

Sources and Legal References

This guide draws on the following New York statutes, case law, and official resources:

• NY Domestic Relations Law Section 240 — Custody determinations and the best interests of the child standard
• NY Domestic Relations Law Section 70 — Habeas corpus proceedings for custody
• NY Domestic Relations Law Section 72 — Grandparent visitation rights
• Lincoln v. Lincoln, 24 N.Y.2d 270 (1969) — Established the in-chambers interview procedure for children in custody cases
• Tropea v. Tropea, 87 N.Y.2d 727 (1996) — Framework for evaluating parental relocation requests

Official New York Resources

• NY CourtHelp — Divorce
• NY CourtHelp — Families & Children
• New York Courts — Divorce Resources

For more about how we research our guides, see our editorial policy and sources methodology.

Related Guides

New York-Specific Guides

• Grandparent Visitation Rights in New York
• Custody for Unmarried Parents in New York
• Divorce in New York
• Child Support and Alimony in New York

National Guides

• How Child Custody Is Determined
• Types of Child Custody
• Fathers’ Rights in Custody
• Modifying a Custody Order