Custody and Visitation Hearings

A custody or visitation case is heard in front of a Judge or a Court Attorney-Referee. If both sides agree on custody of the child, a custody hearing is not needed. Instead of a hearing, the Judge will enter a custody order "on consent." If both sides can't agree on who gets custody of the child, the Judge will hold a custody hearing. The hearing helps the Judge decide if visitation is in the best interest of the child. The Judge will consider factors such as who is best suited to care for the child and keep the child healthy and safe.


People At the Hearing

When both sides can't agree on who gets custody of the child, the Judge will hold a hearing. This is sometimes called an evidentiary hearing or trial. During the hearing, the Judge gets information about what will be best for the child. In many cases, visitation decisions will also be decided during the hearing.

There may be many people in the room for a custody hearing.

  • Judge. The Judge makes the decision about custody and visitation based on what is in the best interest of the child. In New York City, a "Court Attorney-Referee" may decide a custody or visitation case.
  • Witnesses. Usually, witnesses are the parents of the child involved in the case. They can also be relatives and people who know the child and/or the parents.
  • Caseworker, Social Worker or Psychologist. In some cases, the Judge will choose a caseworker, social worker, or psychologist to write a report about the person or people asking for custody. The caseworker might visit both homes to see what they are like. They might also speak to the other people who live in the home.
  • Lawyer for the Child. This is a lawyer the Judge appoints to represent the child. This person will talk to the child in private. It is the lawyer's job to tell the Judge what the child wishes unless the child is very young.
  • Guardian ad litem. Sometimes the Judge will appoint a guardian ad litem (GAL) for the child. This person investigates the case and reports to the Judge. The Judge might ask the GAL for a recommendation and what they think is best for the child.


During the Hearing

If the custody case is between the child's parents, the Judge will look at many things to figure out what is in the "best interest" of the child when deciding custody.

During the hearing, each side will give "testimony" from witnesses in court. Witnesses are usually the parents and people who know the child and/or parents. Witnesses swear what they are about to say to the Judge and in court is true.

The Judge will also read any reports from the caseworker who visited the homes and the GAL. The Judge may also speak to the child privately. The parents and the lawyers are not allowed to be in the room when the Judge speaks with the child in private. They are also not allowed to know what the Judge and the child talked about. Usually, the Judge will talk to the child in the Judge's office.

After all the information about the case is given to the Judge, the Judge will make an order. The court does not favor one parent more than the other. Custody and visitation are based on what is in the child's best interest.


Chat with us to find legal information and free legal services near you.

YouTube DIY Forms Ask a Law Librarian