Child Custody


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.


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.


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 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.


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.


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.

Primary Caretaker

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 best interests.

Home Environment

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 fit parent.

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

New York 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.

Marital Fault

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 themselves.

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 custody determinations.

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.


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).

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