Child custody in NY: How New York courts determine custody

New York child custody laws are geared toward protecting the child's best interests. While some sources advise that there are no guidelines, or only a few guidelines, for awarding child custody in New York, this is not accurate. New York case law gives many guidelines and has defined best interests quite extensively. Knowing what constitutes the child's best interests can help you decide whether to settle your case or go to trial.

Child custody laws in New York

New York child custody laws used to presume that the mother should have custody and be a better choice as a custodial parent. These laws changed many years ago. Neither parent has a better chance of getting custody in New York, which means that a father can get custody. Child custody cases are decided on a case-by-case basis.

Custody can be decided when there has been a New York divorce or when the parents have not been married but have had a child together. Whether or not there was a marriage is not an important factor in deciding where the child should live.

Types of child custody in New York

There are several different types of child custody in New York. Types of custody can include:

• Joint custody. This is where both parents share custody based on a schedule that is decided by them or by the court. Joint custody in N.Y. is common.
• Sole custody. This is where only one parent has custody of the child.
• Legal custody. This is where parents, which can be one or both of them, make the important decisions about the child, such as education, medical, and religious issues. Usually, one parent will have the final decision about these issues, either by agreement or where the court has given one parent the final decision-making authority.
• Physical custody. This is the parent with whom the child resides. Usually, the non-custodial parent will have a visitation schedule with the child.

New York custody laws and best interests

Under New York law, the child's best interests are the most important factor in considering which parent gets physical custody. The child's best interests are also the most important factor for the court when deciding whether a situation warrants granting sole custody.

Custody laws in N.Y. provide that there are specific factors that constitute the best interests of the child. These custody laws came into being after many cases added new custody factors for a court to consider. A court will consider the following factors and how they relate to the child's best interests. Best interests can include:

• How long the child has been residing with either parent
• Where the child has been primarily residing
• Whether the child has any special needs that one parent is better equipped to handle
• Whether domestic violence is an issue in the family
• Whether there are any siblings, as courts like to keep siblings together in most instances
• Whether one parent is better equipped to handle the intellectual and emotional development of the child
• Whether one parent will foster a good relationship with the other parent
• Whether parental alienation—where one parent is turning the child against the other parent—is involved
• If an older child has a preference about where to live, which will not be determinative of custody but is something a court may take into consideration
• Whether one parent has better parenting skills
• Whether either parent has issues with alcohol or drugs
• Which parent can better provide food, shelter, medical attention, and education for the child
• The home environment of each parent
• If there exists a strong bond between the child and the parent
• Whether there is a custody order already in place or an informal agreement as to custody
• The parents' work schedules
• Whether a parent will be able to promote the child's religious beliefs and religious upbringing
• The absence of domestic partners in each parent's household
• The mental and physical health and stability of each parent

Pursuing child custody in N.Y.

There is no “magic age" where a child's preferences are considered. However, a court will consider the wishes of a 12-year-old child more than the wishes of an 8-year-old child.

Likewise, a court must consider the “totality of the circumstances." This means that a court will take into account all of the above factors in addition to any other factors and whether these factors, as a whole, tip the scale in favor of one parent.

Usually, one factor isn't determinative of the child's best interests or child custody in New York. If, however, the child has been living with one parent for a long time and is thriving, a court will be reluctant to disturb the status quo.

When considering the child custody laws in N.Y., review the factors listed above. If many of them point toward the other parent, you may want to consider settling your case rather than litigating it in court. 

New York has custody agreements, which are now referred to as parenting plans by some of New York's courts. If you are settling your case, you can settle child custody or your entire case, which could include visitation, child support, and other issues.