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Understanding New York’s Custody Laws

New York's custody laws are not written in any statute. Rather, they have evolved over the years by numerous court decision. Regardless of how New York determines its custody laws, it is important to understand that conceptually, custody cases are unlike most other cases. In most court proceedings, the events leading to the lawsuit took place in the past; the facts are frozen, and the court looks back in time to reconstruct those facts.

In a custody case, the court is being asked to look to the future, and predict which parent will be the better parent in rearing the child. In doing so, courts will employ a number of methods which when taken together, help the court determine what is in the best interests of the child.

Most people are familiar with the term "best interests," yet it continues to defy a firm definition. Custody cases are extremely fact sensitive, and each case is decided on its own merits. However, 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

While there is no statutory distinction between physical and legal custody, understanding these concepts is the first step in understanding a custody proceeding. 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. An order of custody is always subject to an order of visitation for the non custodial parent. In some states, the terms custody and visitation are not used, instead the term of art is "parenting time." New York is slowly moving in that direction, however, no matter what term is used the underlying concepts remain the same.

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. However, equal authority also means that each parent has an absolute veto over the decisions of the other parent, meaning that complete deadlock on decisions involving the child will result if a mutual agreement cannot be reached. For this reason, courts in New York have held that joint custody is appropriate on 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 pre-trial 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, and it may choose to ignore any of the listed factors. This list should be used to get a rough idea 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

Alcohol and drug use will of course play a role in determining custody. 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

The amount of time each parent has available to spend with the child will be considered by the court. 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. Therefore a physical disability or health issue of a parent will not play a large role in itself. If the disability or health issue materially affects that parent's ability to care for the child, it will be considered by the court. What constitutes 'materially affecting' will depend on each case's own unique facts.

Finances of Parents

The finances of each parent will play a role in determining custody. However, 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 will utilize specific tests during the course of the evaluation, others will not.

Upon completion, 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 position will depend on the forensics as well. Forensic evaluators are witnesses, and will testify and be subject to cross examination.

The Home Environment

In extreme cases, the home environment will play a significant, if not determinative role, in deciding custody. 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 role independent than that 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 in itself will generally not play a role in determining custody. However, if the events which gave rise to the fault affected the child in some way, then it will play a role.

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. Likewise, being reasonable, cooperative and respectful towards the court will help. In court behavior alone will not determine custody, but it can certainly help tip the odds one way or the other, and should not be ignored.

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 a sufficient basis 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 chose 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 as 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.


The existence of siblings, and keeping siblings together is generally considered to be in the child's best interest. However, courts are not bound to keep siblings together, and in some cases, 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.

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