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New York Custody: Neither Parent Has a Prima Facie Right


Child custody agreements can get pretty complicated in New York State when all family laws are considered. Matters can become serious points of contention when one parent refuses to allow the other to interact with the child, even before custody is settled by the court. In some cases, this is referred to as detaining the child, and it requires unique orders to resolve.

In particular, when a child lives in New York State, one parent or the other can obtain a writ of habeas corpus from the New York Supreme Court. This writ is as serious as it sounds, and it works just as writs of habeas corpus do in criminal cases where an imprisoned individual is brought to the court. Except in the case of family law and child custody disputes, the writ orders the detaining parent to bring the child to court to sort out custody disagreements.

After a writ of habeas corpus is used, the divorce court will generally make a ruling then and there in hopes to avoid any similar complications in the future; it also holds the right to modify or eliminate its order at a later date. As with all cases of such origin, no parent retains prima facie rights to the child’s custody, or rights they had assumed based on their own definitions of their rights as a parent. Instead, the court relies solely on the best interest of the child and its own discretion to assign custody rights.

Prima Facie? Habeas Corpus? What’s It All Mean?

Sometimes the law can seem like nothing but legalese meant to confuse or deter the average person from trying to understand them. Sometimes this is the truth. To break down what New York State Domestic Relations Law (NYS DRL Section 70(a)) says about child custody rights and agreements, let’s turn it completely into layman’s terms.

If your spouse or ex-spouse is refusing to let you see your child and you all live in New York, you can use a court order – writ of habeas corpus – to summon everyone to court. At that point, your spouse cannot claim to have custody of your child based solely on the fact that they had it before the summons – they lose their prima facie rights. The court will then make a custody decision based on what it thinks will best solve the problem.

If you still have questions, don’t worry. Our Dutchess County divorce attorneys from the Law Office of Dennis R. Vetrano, Jr., LLC are here to sort it all out for you. Just call us at 845.605.4330 and set up your free initial consultation today to work directly with our family law professionals.