Child Custody In New York

In a custody case, a New York court will look to the future, and predict which parent will be the better parent in rearing the child "in the best interest of the child."

Custody cases are extremely fact sensitive, and each case is decided on its own merits. But there are certain definitions which are constant from case to case, as well as factors which the courts will consider in determining an initial custody determination.

Physical verses Legal Custody

"Physical custody" refers to where the child lives. Physical custody is sometimes known as "residential custody." "Legal custody" refers to which parent has the legal authority to make decisions involving the child. The three most significant issues involving legal custody are religious, educational and medical decisions. A custody order always includes visitation for the noncustodial parent.

Joint Custody

"Joint custody" means joint legal custody, and not how much time the child spends with each parent. Joint custody gives both parents equal decision-making authority. Joint custody will allow both parents an equal role in rearing their children, provided both parents can work together to make joint decisions. But equal authority also means that each parent has an absolute veto over the decisions of the other parent, so a complete deadlock on decisions involving the child will result if a mutual agreement can't be reached. For this reason, courts in New York have held that joint custody is appropriate with the consent of both parties, but is not appropriate after a hearing.

Pendente Lite or Temporary Custody

"Pendente lite" or "temporary custody" is a custody order issued by the court once the case has been filed, but before trial. "Pendente lite" means "pending the trial" and this term is usually used in Supreme Court, while "temporary custody" is usually used in Family Court. At the conclusion of the case, any pretrial temporary orders are vacated, and a final order is issued.

Factors Considered by the Court in Deciding Custody

The following is a list of factors considered by a court in determining custody. This list is by no means exclusive, and the court can consider factors which are not listed here as well as ignore any of the listed factors. This list should be used to get a general idea of what a court will consider, keeping in mind that each custody case is extremely fact specific.

Age of Parents

The age of the parents can be a factor, although as a practical matter, it won't play a large role unless there is a large disparity in the ages.

Alcohol & Drug Use

As one would expect, the more one parent uses drugs or alcohol, the more the court will favor the other parent. Likewise, getting arrested for drunk driving in the middle of a custody case will certainly be a factor considered by the court.

Availability of Parents

A court will favor placing a child with the parent who can spend more time, as opposed to a parent who must rely on others to care for the child when he or she is unavailable.

Disability & Physical Health

The physical health of the parents will play a role in determining custody to the extent that it impacts on how well a parent can care for a child.

Finances of Parents

The finances of each parent will play a role in determining custody. But financial disparity can be offset to a degree by existing or potential child support orders.

Findings of Child Neglect/Abuse

A finding of neglect, or worse, of abuse, will almost always result in custody being awarded to the other parent, since such a finding is a judicial determination of parental unfitness.

The Forensic Evaluation

A "forensic evaluation" is an evaluation made by a mental health professional to determine the mental fitness of each parent. Normally, the evaluator will examine each parent alone, the child alone, and each parent with the child. Some evaluators will consider collateral sources as well, and may wish to speak with prior counselors, school officials, other family members or any one else the evaluator thinks is relevant. Some evaluators use specific tests during the course of the evaluation.

The evaluator will issue a written report, usually with a recommendation as to custody. Should the case proceed to a trial, the recommendation of the forensic evaluator will carry great weight. Often, the law guardian's position will depend on the forensics as well.

Forensic evaluators are witnesses, and will testify and be subject to cross examination.

The Home Environment

An otherwise fit parent who moves to an unsafe or unstable home environment, or who simply does not have a home, will often find the factor of home environment plays a determining role in deciding custody.

For less extreme cases, the courts will still consider which home environment is the better of the two.

The Law Guardian

The "law guardian" is a lawyer assigned by the court to represent the interests of the child or children, and as such will play a role independent of the parties. Depending on the age of the child, the law guardian may be an advocate for the child, or the law guardian may substitute his or her own position on behalf of the child, acting more in the role of a guardian ad litem. The law guardian's position may change during the course of a custody case, and it is not uncommon for a law guardian to be undecided prior to trial, especially as new facts continue to develop. Courts will place a great deal of weight on the law guardian's position, but the court is not bound to blindly follow the law guardian.

Law guardians will generally not issue reports, nor will law guardians testify or be subject to cross examination.

Marital Fault

Marital fault alone will generally not play a role in determining custody. But if the events which gave rise to the fault affected the child in some way, it will be considered.

Mental & Emotional Stability

As common sense would dictate, courts prefer to give custody to a parent who is more stable, both mentally and emotionally.

The Parent's Observable Behavior in Court

A parent's behavior in court will play a significant factor in determining custody. Being argumentative or expressing hostility towards the other parent will be noticed by the judge. Being reasonable, cooperative and respectful towards the court will help.

A Parent's Willingness to Foster the Child's Relationship with the Other Parent

The court will place a significant weight in each parent's willingness and ability to foster a relationship between the child and the other parent. A parent's continual willful interference between the child and the other parent can result in custody being awarded to the other parent. In fact, a custodial parent's interference alone can in many cases be enough for the court to consider changing an existing custody order.

Preferences of the Child

There is no magic age at which the wishes of the child prevail. The closer the child is to eighteen, the more weight will be given to that child's wishes. For younger children, the wishes of the child give way to why a child prefers one parent or another. Many children do not have a preference, and in fact should not be forced to choose between their parents.

Primary Caretaker

The court will look to see which parent was or is the primary caretaker of the child, and will often assume that parent should continue as the primary caretaker. Determining which parent is or was the primary caretaker can often be highly contested, and is fact-specific for each case.


Religion will play a role when a child has been raised in one religion and the parents are of different religions. The court will favor the parent who is better able to continue with the child's religious upbringing. Needless to say, trying to change a child's religion or interfering with a child's religious instructions will not be looked upon favorably by the court.


Keeping siblings together is generally considered to be in the childrens' best interest. But courts aren't bound to keep siblings together, and in some cases the court may determine that the best interests of the children require that they be split between the parents.

Voluntary Custodial Agreements

Courts will often turn to the parties to see if there was an implied agreement that one parent was better than the other. If the parties have such an agreement, as demonstrated by their actions, then the court will conclude that both parents agree that the parent with physical custody is the better parent for the child. The court assumes that without some compelling reason, no reasonable parent would voluntarily allow a child to live in a situation which is not in that child's best interests.

Modification of Custody

Courts will use a two-prong test when asked to modify custody. The party wanting to modify custody must first show a "change in circumstances" since the last order. If a change in circumstances is shown, then the parent wanting to change custody must prove that modifying the order is in the child's best interest.

This article is provided as an educational service by J. Douglas Barics, attorney at law. If you have any questions or comments, you are welcome to contact Mr. Barics at or (516) 829-4600.

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