New York Domestic Relations Law section 70 governs custody determinations
and establishes that there is no presumptive right on the part of either
party for the custody of a child of the marriage. The most important factor
im making an award of child custody is the best interests of the child
after a consideration of all the particular circumstances.
The custody determination must be made without regard to gender. Indeed,
it is unconstitutional to use gender as a factor in custody disputes.
Nevertheless, Domestic Relations Law section 70 confers upon the court
sufficiently broad discretion to adapt each decision to the unique facts
of the case before it. Each case is decided strictly upon its own facts,
thus making it virtually impossible to make generalizations. The one exception
to this rule relates to domestic violence involving the parties; the court
is required to take into consideration any domestic violence which impacts
upon the parties or the child.
Other factors which may be considered by the court are: (1) age of the
child; (2) health and special needs of the child; (3) the capability of
each parent to provide for the care of the child; (4) a history of the
care provided by each parent for the child; (5) the health and physical
condition of each parent, including mental health and any disabilities
resulting from alcohol or drug abuse; (6) the previous and contemplated
home environments for the child; (7) educational needs of the child and
the ability of each parent to fulfill them; (8) the presence or absence
of members of the extended family of the child; (9) interference with
visitation or the relationship of the other parent with the child; (10)
religious considerations; (11) the preference of the child, depending
upon the child's age; (12) any abuses by either parent with respect
to the child; (13) the effect of separating siblings; (14) the party's
intent as express in an agreement; (15) the relative nurturing care ability
of each parent; and any other factor that may have bearing upon the best
interests of the child.
DIFFERENCE BETWEEN PHYSICAL CUSTODY AND LEGAL CUSTODY
The distinction between legal custody of the child and physical custody
of the child is one of the more misunderstood concepts clients are forced
to grapple with. While there is no written, statutory definition distinguishing
these two concepts, there is ample case law on the subject which acts
as controlling authority on the subject.
In general, physical custody or residential custody refers to where the
child lives. Legal custody refers to which parent has the legal authority
to make major decisions involving the child's residence, health, education,
religious upbringing and general welfare. It should be noted that a parent
may have joint legal custody, but the parent having physical custody or
residential custody is the nominal custodial parent or primary custodial
parent. This should not be interpreted to mean that the primary custodial
parent has unlimited authority. Indeed, quite often, joint custody provisions
confer equal decision-making authority on both parents.
JOINT VERSUS SOLE CUSTODY
As stated above, joint custody gives both parents equal decision-making
authority over all major issues relating to the child's upbringing.
It is to be noted, however, that equal decision-making authority also
confers on each parent absolute veto power over the decisions of the other parent.
While joint custody was recognized by the New York Court of Appeals in
Braiman v. Braiman , 44 N.Y.2d 584, subsequent court decisions have rarely awarded joint custody
following trial or hearing. Simply, joint custody is something which can
be agreed to by the parties, thereby taking the decision out of the court's
hands, but it is seldom – if ever – awarded by the court.
Generally, the court will award sole custody to one party over the other.
PENDENTE LITE OR TEMPORARY CUSTODY
Pendente lite or temporary custody is interim custody awarded by the court to one party
during the pendency of the case (
i.e., from commencement of the action up until trial and final order or decision). A
pendente lite application for custody normally is coupled with an application for spousal
support and/or child support, in addition to other forms of relief needed
to maintain the status quo of the parties and children during the pendency
of the action.
Often, parties will refrain from entering into temporary agreements which
designate one party as the interim custodial parent over the other for
fear that said designation will diminish the chances of the non-custodial
parent to seek custody at a later time. Accordingly, parties may simply
reserve their respective rights as full, custodial parents, and carve
out "parenting time" for each parent, leaving the ultimate decision
to the court or subsequent agreement by the parties themselves.
ROLE OF THE LAW GUARDIAN OR ATTORNEY FOR THE CHILD
The law guardian or attorney for the child is a lawyer assigned by the
court with the express purpose of representing the interests of the child
or children. Simply put, the law guardian is an advocate for the child,
not the parties. As such, the court generally places a great deal of weight
on the law guardian's position, although the court is not bound to
follow the law guardian's requests.
Law guardians do not issue formal, written reports, nor will law guardians
testify or be subject to cross examination. Rather, the law guardian's
job is to take a position which must be supported by the credible, admissible
evidence placed on the record.
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.
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.
BEST INTEREST OF THE CHILD IN DETERMINING CUSTODY
As stated earlier, child custody cases are extremely fact sensitive, and
each case is decided on its own merits. However, there are certain factors
which the courts will give greater weight to when considering an award
of temporary (
i.e., pendente lite) or final custody determination.
As a general starting point, 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.
Preferences of the Child
A child's preferences also will be considered, but the court is not
bound by any stated preferences. Indeed, when determining how much weight
to give the child's wishes, the court must consider the age, maturity,
and consider the possibility of parental influence. The closer the child
is to eighteen, the more weight will be given to that child's wishes.
However, the court may disregard a child's wishes in determining what
is the best interests for the child.
Existing Custody Agreements
Courts will strongly consider any written custody agreement made between
the parents, but are not bound by them. Again, the court may disregard
an agreement if it determines that said agreement is not in the best interests
of the child.
Absent an express, written agreement, the courts will often look to see
if there was an implied agreement between the parties. that one parent
was better than the other. For example, if a child has resided with one
parent for a continuous and lengthy period of time, and there is no indication
that a change would enhance the child's well-being, courts likely
will continue the status quo as in the child's best interests. 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
Home environment will play a significant role in deciding custody. It goes
without saying, the courts favor safe, healthy, nurturing and stress-free
environments in which a child can live and thrive. In
Royea v. Hutchings , 260 A.D.2d 678 (3rd Dept. 1999), the court awarded custody to the father
after finding the mother's home had become stressful and chaotic,
and that the child was not thriving under those circumstances. Similarly, in
Ingalls v. Ingalls 58 A.D.2d 1039 (4th Dept 1977), the mother's relationship with her
boyfriend involved quarrels and disturbances, and on at least one occasion,
the home was unheated, all of which warranted the father being granted
custody. More often, the court is faced with the far more difficult task
of determining the better of two home environments, with neither one being bad.
Sooy v. Sooy, 101 A.D.2d 287 (3d Dep't, 1984). In such situations, the court must
rely upon other factors.
Alcohol or Drug Use
Clearly, alcohol or drug use, whether habitual or casual, is something
the court will consider when making a custody determination. However,
the extent of the drug or alcohol use will be considered in view of the
overall facts. For example, in
Worowski v. Worowski , 95 A.D.2d 687 (1st Dept. 1983), the mother had a history of alcoholism
but was improving; and when compared to the 74 year old father who had
no meaningful interaction with the child, she was deemed to be the more
Quite often both parties have a history of drug or alcohol abuse, and the
court may order drug testing, which can introduce an unwelcome dynamic
into the equation.
Medical records from in-patient or out-patient treatment facility may also
be subject to review, provided same are relatively current and available.
Indeed, records older than 7 years may have been discarded or are so far
removed from the current situation as to be deemed irrelevant.
Domestic Violence or Child Abuse/Neglect
Domestic Relations Law 240(1) requires that the court consider the effects of domestic violence when
making a custody determination. Moreover, the domestic violence need not
involve the child to be a factor, such as where the domestic violence
involves acts of violence by one spouse against the other.
It goes without saying that a Family Court or Criminal Court finding of
child neglect or abuse will result in custody being awarded to the other
parent, since such a finding is a judicial determination of parental unfitness.
Far more difficult are those situations when neglect or abuse allegations
are made in the context of a custody case. If allegations are found to
be true, the abusing parent likely will lose custody. However, if the
court determines that the allegations were falsely made to obtain custody,
the court may award custody to the falsely accused parent.
Physical Health, Mental and Emotional Stability
Courts prefer to give custody to a parent who is more physically, mentally
and emotionally stable, and better suited to meet the mental and emotional
needs of the child.
In general, marital fault does not play a large role in determining custody.
The New York Court of Appeals in
Harrington v. Harrington, 290 N.Y. 126 (Court of Appeals 1943) held that deciding which parent is
to blame more for a failed marriage is not the decisive factor in custody,
but it will be considered. An act of adultery is minor,
Blank v. Blank 124 A.D.2d 1010 (4th Dept. 1986), but when a parent's paramour is
brought into the marital home and the children overheard the lovers, the
court held that the wife placed her own needs ahead of the children. It
is how the events affect the child that will play a factor, not the events
Parent's Observable Behavior in Court
A parent's behavior in court and throughout the divorce proceedings
often plays a significant factor in determining custody. Unreasonable,
argumentative or hostile behavior by once parent towards the other is
something which the courts often take note when making custody determinations.
Likewise, reasonable, cooperative and respectful behavior by one parent
towards the other often results in favorable inferences which support
Willingness to Foster the Child's Relationship with the Other Parent;
Alienation of Affections
In general, the court will pay particular attention to each parent's
willingness and ability to foster a relationship between the child and
the other parent, as well as any evidence of efforts to alienate the affections
of the child to 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 be a sufficient basis to consider changing an existing custody order.
However, this factor alone will not be sufficient to change custody without
looking at the totality of the circumstances.
MODIFICATION OF CUSTODY
Courts will use a two prong test when asked to modify custody. The party
seeking to modify custody must first show a change in circumstances since
the last order. If a change in circumstances is shown, then it must be
proven that modifying the order is in the child's best interest. The
mere filing of a petition does not automatically grant an entire hearing,
instead there must be a showing of some evidence requiring one.
Grassi v. Grassi, 28 A.D.3d 482 (2nd Dept. 2006).