Child Custody in New York

Few, if any, matters in an individual’s life take on the same emotional aspect as involvement in a New York child custody dispute. New York (as well as the rest of the country) follow the “Best Interests of a Child” standard as the basis of court decision in child custody proceeding. In New York, the statute (found within the Domestic Relations Law statute, DOM § 70)the law allows a parent to petition the Court for custody of the child based on the best interests of the child standard. New York statute and case law provides for a parental duty to dependent, minor age children to continue until the age of 18 and is shared between both natural parents unless determined otherwise by the courts – the purpose of the contested child custody proceeding.

Although New York does recognize grandparent and other non-parent visitation rights, natural parental rights are generally protected from loss of custody to non-parents. (see authoritative case law at: Bennett v. Jeffreys 387 N.Y.S.2d 821, 40 N.Y.2d 543 (Court of Appeals 1976)). Like most U.S. states, New York follows theUniform Child Custody Jurisdiction and Enforcement Act of 1977(found here under Article 5-A. of the Domestic Relations Law); which allows for legal cooperation in intra-state custody cases.

Legal Custody, Physical Custody, Joint Custody – What’s It All Mean?

Child custody arrangements are an important aspect during a divorce. Although no statutory distinction technically exists between “legal custody”, “physical custody”, or “joint custody”; the customary legal practice of defining which parent is what and what rights each has is standard operating procedure in a New York custody case.

Physical custody, sometimes called residential custody, is awarded to one parent (the residential parent – the parent the child lives with the majority of the time). This arrangement essentially states that one parent has the child more than the other parent, and the other parent (with less time with the child) has “visitation rights” of the child (visitation is also referred to now as ‘parenting time’). This determination, as well as visitation schedules and even child support obligations in child custody cases, is something that will be defined in a Court Order. This ends up being a life defining factor that can have a major effect on the relationships between parent and child for the remainder of a child’s life as a minor.

Legal custody, on the other hand, does not necessarily have anything to do with whom the child lives and is instead defined as which parent (or both parents) will be making certain decisions for the minor child such as schooling, medical care, and extracurricular activities.

Joint custody is essentially a branch off the legal custody tree in that it defines the legal custody arrangement – regardless of which parent is the residential/custodial parent and which parent is the non-residential non-custodial parent. Joint custody means that both parents have the same legal authority to make decisions for a minor child. For many people involved in a divorce or unmarried custody dispute in New York, this may not be possible as the two parents may butt heads over important issues such as schooling or religious upbringing. However, the goal is many cases is to allow for a joint custody arrangement where both parties discuss major life decisions together and allow the other parent that has the child in his/her possession at the time to make everyday routine decisions (such as bedtime, what to eat or dinner, etc.).

In New York child custody cases, although the courts prefer to award joint custody to both parents when possible, this is not anything close to what happens the majority of the time. As the Court stated in Braiman v. Braiman, 44 NY2d 584 (1978)and subsequently restated as recently as 2008, (found here in Alfred F. v. Frances F. 2008 NY Slip Op 51916 – NY: Family Court, 2008), “Joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in a mature civilized fashion.”

What is a Child Custody Proceeding?

New York child custody courts generally establish pendente lite (pending trial) arrangements during the hearing of a custody proceeding prior to trial. This is more commonly called “temporary custody.” This temporary custody status and Order by the court will eventually endonce a final custody order is entered finalizing the case or finalizing that portion of the case as it relates to child custody and visitation (parenting time). The court will look to statements by the parties, witnesses, doctors, attorneys and even a court ordered guardian ad litem (an attorney for the child) to make a final determination.

What Exactly Is The Best Interests of The Child Standard?

New York courts will look to a number of factors in making their determination on child custody, such as:

  • Behavior in Court. The observance of parental conduct in court is a considerable influencer on the outcome of a child custody proceeding in New York. A parent exhibiting a willingness to foster a continued relationship between the child and the other parent stands a good chance of being awarded custody. The more stable, cooperative, reasoned, and respectful a parent is in his or her behavior in court and with a judge, the likely a positive, timely, and sustained outcome for the child – showing up wearing your “Sunday best” and being respectful goes a long way in court.
  • Home environment. In most child custody cases, the home environment is a determinative factor in court decision. Parents found to be living in an unsafe home environment are generally not given physical custody of a child. This is one of the top factors considered and numerous cases in New York expand on this topic, and other factors, and can be found discussed here in McDonald v. McDonald, 122 AD 3d 911 – NY: Appellate Div., 2nd Dept. 2014.
  • Primary caregiver. A parent’s schedule will determine time spent with the child. Courts favor placing a child in physical custody with the parent who can provide evidence that he or she is the “primary caretaker” with adequate time for supervision in-person, opposed to the parent who is otherwise occupied and must rely on childcare to fulfill other obligations.
  • Income and earning-capacity. Financial disparity is not a conclusive reason for physical custody but may influence the apportionment of child support by the courts, especially if one parent is unable to support themselves and is constantly being fired jobs while the other parent is gainfully employed and has a good track record of being employed.
  • Health of the Parents. A parent’s physical health is a factorused by the courts to the extent that it may affect care of the child. If a parent exhibits a health issue or physical disability, the court must establish if the concern materially affects the parent’s ability to adequately care for the child during their parenting time.
  • Mental health. In some cases, a written diagnosis of mental competence may be part of a recommendation in a custody matter. If a history of alcohol or drug abuse is present, and especially if there is an arrest record, a court will often favor the other parent in a child custody decision. However, a parent that is in treatment or on medication shows that he or she is on a healthy path and is stable despite a mental health issue that may be present.
  • Child abuse or neglect. Evidence of child abuse or neglect by one parent generally results in full-custody award of the child to the other parent should he or she be deemed fit.
  • Age of parents. Where there is a significant disparity between the age of the parents, court decision may be influenced by this fact.
  • New York courts still consider religious continuity as a substantive factor in the custody decision. A parent in support of the ongoing development of a child’s religious foundation is considered favorably by a court.
  • Sibling relationships are an important consideration in terms of a child’s best interest. Children may also be designated for custody by one or the other parent; splitting full-time custody of those siblings between the two parents.
  • Voluntary custodial agreements. Where both parents agree that it would be in the best interests of the child to give one rather than the other physical custody, such an implied agreement may be considered by the court.
  • Support obligations. Existing child support obligations of a custodial or a non-custodial parent are interminable while children are still legal minors. Support of a child is considered an ongoing responsibility regardless of the nature and length of a divorce proceeding, existing spousal maintenance obligations to a former spouse, or modification of spousal support in the form of alimony payment arrangements.

The Silverberg Law Firm, P.C. focuses its practice on New York divorce and family law matters in Westchester County and Manhattan, New York.  Our office provides legal representation for clients in New York child custody matters. ContactThe Silverberg Law Firm, P.C. to learn how our office can obtain the results you deserve in your New York child custody matter.


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