Determining Custody – Legal Standards

Understanding The Legal Standards For Determining Custody in New York

As you can imagine, determining between two parents which is the “better” one is not a task anyone relishes. However, when two parents disagree over who should have legal custody of their child, someone must do so. The person designated by our society to do so is an impartial judge.

When determining issues related to children, the touchstone factor the courts consider is “the best interests of the child.” The court, as the parens patriæ (parent of the nation), is duty-bound to protect vulnerable charges incapable of protecting themselves. The courts’ duty to protect children, however, must be tempered by society’s strong countervailing policy of allowing parents to raise children without government interference. Obviously, there is great tension between freedom to parent and the government’s obligation to step in and protect vulnerable children, and the legal system works hard to honor both sides of that issue. Thus, generally, the government cannot step into family matters unless a child is abused or neglected, creating danger for the child’s immediate safety and long-term health. In the custody context, however, when two parents cannot agree on what is best for their children, an impartial judge must be brought in to decide.

New York has not codified the factors that are considered in determining the “best interests,” in part because some were afraid that listing them would appear to rank them in order of importance, and no one factor is more important than others. By decisions and resulting case law, however, courts have enumerated many factors that should be considered. Any list, though, is not comprehensive and indeed anything that affects the child’s health and welfare is a consideration in a custody determination. As the Court of Appeals has said, “[T]here are no absolutes in making [custody] determinations; rather, there are policies designed not to bind the courts, but to guide them in determining what is in the best interests of the child.” Eschbach v. Eschbach, 56 NY2d 167, 171, 451 NYS2d 658 (1982) (citing Friederwitzer v. Friederwitzer, 55 NY2d 89, 93–95, 447 NYS2d 893 (1982)).

There is no prima facie right for either parent to be awarded custody, DRL §§ 70[a] & 240[1][a] (though mothers still seem to get a preference for custody). The court must decide “best interests” by looking at the “totality of the circumstances.” That means that everything is potentially relevant in a custody battle. Moreover, as stated above, if the parties cannot make joint decisions do not agree to share “joint legal custody,” the courts cannot order it. Braiman v. Braiman, 44 NY2d 584, 587 (1978) (“Entrusting the custody of young children to their parents jointly . . . is insupportable when parents are severely antagonistic and embattled.”).

One consideration is who has been the historical caretaker of the child. Wakes the child up in the morning, gives the child breakfast, takes the child to school, picks the child up after school, ensures homework is done, takes the child to doctors, gives the child dinner, baths, and puts the child to bed. Maintaining stability and consistency in the child’s life can be important and the historical caretaker starts off with that advantage. The advantage, however, can be tempered by the fact that now that the family is being reconstituted, parents take on different roles. A parent who was the primary bread-earner may, now that the family lives in two units instead of one, want to take a greater role in the parenting to ensure a meaningful role in the child’s life.

Any instances of domestic violence (“DV”) or intimate partner violence (“IPV”)  is an issue that the statute requires a judge to consider.1 Thus, if there are allegations of DV or IPV, a party must consult a skilled lawyer to deal with that issue in a careful, strategic manner.

Parental alienation (when one parent turns the children against the other parent), is another complicated issue that requires skill and dexterity to deal with. See the Alienation page on this website for more information.

Among the other factors a court might consider are:

  • the quality of each parent’s home environment;
  • each parent’s hours of employment (and, therefore, the parent’s ability to care for and spend time with the child);
  • the parent’s and child’s relationship with others in the home;
  • the extended family available at one parent or the other;
  • parent’s desire to move away to a different location;
  • each parent’s relative fitness as a parent;
  • the parent’s age, physical & mental health, stability;
  • a parent’s alcohol or substance abuse;
  • a parent’s use of cigarettes and how it affects the child;
  • a parent’s psychiatric or anti-social conditions;
  • any physical, emotional or sexual abuse;
  • any false accusations of abuse;
  • a parent’s exposing the child to inappropriate material;
  • a parent’s exposing the child to prejudices and bigotry;
  • the guidance provided to the child by each parent and each’s ability to guide and provide for the child’s overall well-being, including educational, emotional,
    social and intellectual development;
  • the child’s emotional and psychological profile and which parent suits it better;
  • issues surrounding culture, ethnicity & religion;
  • any attempts to manipulate the child;
  • each parent’s ability to provide for the child financially;
  • a parent’s financial stability & responsibility;
  • the effect an award of custody to one parent might have on the child’s relationship with the other parent;
  • the ability and willingness of one parent to foster the child’s relationship with the other;
  • any interference by one parent with the child’s relationship to the other;
  • the empathy, attachment, judgment and flexibility that each parent exhibits with respect to the children and the other parent;
  • the compatibility of a parent’s strengths to the child’s needs;
  • the child’s own preference

with the amount of consideration given to it (dependent on the child’s age and maturity);

  • a parent’s prior failure to comply with Court orders;
  • the stability and continuity afforded the child by continuing existing custodial arrangements;
  • whether prior custodial arrangements were by voluntary agreement or court order;
  • where the child’s other siblings are living with preference given to keeping siblings together for support;
  • the recommendations of a neutral forensic evaluator;
  • the recommendations of the attorney for the child;

and, of course, the catchall . . .

  • ANY OTHER FACTOR the court deems relevant.

What weight should be accorded to any particular factor is left to the “sound discretion” of the trial court.

Obviously, if a parent has one or more of the above conditions mitigating against an award of custody to them, they should consult with a skilled, experienced lawyer to attempt to find a way of ameliorating any negatives and highlighting positives so that the parent can obtain the best possible result.