How is Child Custody Determined in New York?

Key Takeaways:

• Most child custody cases in New York end in settlement outside of Court—that is, the parents come to a custody and parenting plan agreement without having to litigate.
• In custody cases, the Court investigates many issues to inform its larger decisions. This can include issues like parental fitness or lack thereof, determining which parent is the primary psychological parent and the quality of care provided by both parents so far, determining the availability and stability of each parent and the suitability of each home, and to some extent considering the wishes of the child (if they do not conflict with the child’s best interests as determined by the Court).
• All claims made in Court in these matters must be backed up with documentary evidence. Testimony to the fact is not usually enough.

It should be stated up front that most child custody cases in New York end up getting resolved with a settlement. That is, in most cases, the parties reach an agreement as to their custody arrangements and parenting plan outside of Court.

However, if we’re getting to the core of this question, we’re going to have to talk about what happens if there’s no settlement in a custody case, and the matter needs to be decided by the Court.

In New York custody cases where the parties cannot reach an out-of-Court settlement (and thus have decided to pursue litigation), the Court is going to hear evidence and then analyze many issues (some of which may seem relatively minor).

For example, one such issue is often whether there is some allegation of a lack of parental unfitness on the part of one parent or the other. In this context, “unfitness” means that parent allegedly has something going on with them that precludes them from being a safe and responsible caretaker of their child. This could be a mental illness, anger management problems, a history of perpetrating domestic violence in the past or present, an issue with drugs or alcohol addiction, etc.

It’s important to note that allegations of unfitness against one or both parents have to be proven. Parental unfitness cannot merely be assumed because someone (especially the other party in the custody case) says they suspect it’s true. For example, the Court would not be able to declare parental unfitness of Parent X just because their co-parent said, “I think Parent X has a problem with drugs.” This would not be sufficient evidence to prove the matter at trial.

Likewise, if there was an allegation of, say, drug problems against one parent, there has to be proof to use that issue to declare lack of fitness for parenting. For sufficient proof, the alleging party would have to present evidence, such as pictures or video of the person being intoxicated, or perhaps a record of one or several DWI/DUI convictions (notably, these can only be brought as proof if they are convictions—merely being charged without being convicted is not enough evidence). If the parent with an alleged drug problem was sent to drug or alcohol rehab, you can request their rehab records through the Court, and present them as evidence as well. These are some of the ways that something like parental lack of fitness would be alleged, and all provided evidence would be examined by the Court.

Beyond unfitness issues, then the Court is going to look at evidence to determine which parent is considered something termed the primary psychological parent. This is an umbrella legalistic term for the parent that has performed the majority or vast majority of the parenting tasks that go into raising a child up until the point of the separation or divorce.

Determining who is the primary psychological parent is a process that can consist of the court examining which parent is responsible for many different tasks. These include:

• Who gets the child or children up in the morning
• Who puts the child or children to bed at night
• Who feeds the child or children their meals
• Who prepares their meals for outside the home (i.e., lunch)
• Who gets them off to school
• Who makes sure they get home from school or are arranged for after school
• Who does homework with the children
• Who shops for the children’s’ clothes
• Who arranges for playdates, actually takes them to the play date, and knows the children’s friends (and their parents)
• Who arranges for medical or dental appointments
• Who takes the children to appointments
• Who participates in parent-teacher conferences

These are only a few examples of the tasks and roles that are examined in determining which parent is the primary psychological parent.

Like any other matter is proven in Court, claims regarding which parent does which task have to be documented with corroborating evidence. It’s not enough for the Court for one person to say, “Yes, this is what’s going on.” You are generally going to need actual, documentary evidence (or witness testimony) to corroborate the claim in order for it to have a meaningful chance of making a difference to the Court.

Beyond those two major issues, there’s a whole bunch of other factors that the Court takes into consideration in deciding on New York custody cases. These include:

• The availability of each parent. This is a matter that may seem obvious, but can sometimes become complicated. When trying to figure out which parent is more “available”, the Court will consider how many hours in a given day they are usually physically present, as well as what kind of presence they can bring to their children. In many cases, though, it comes down to a matter of hours. For example, if one person is working 14 hours a day and the other has a 9:00-to-5:00 job and maybe works from home sometimes, then it’s obvious which parent would be more available for the child.
• The nature, quality, and location of the home environments of each parent. Assuming the parents are separated, the court will consider the nature and quality of the home environments of each parent. This includes issues like where each home is located (especially in relation to other things that are important to the child, like their school, their extracurricular activities, and their friend group); who else is residing with the child in the home (especially pertinent if there is someone who may pose a danger to the child); and whether the home is set up to properly house and facilitate healthy growth for the child.
• The quality of care already provided by each parent. The Court is also going to consider the quality of care that the respective parents have already provided to the child or are providing to the child presently. This will be factored into the projected ability of both parents to care for the child going forward.
• The stability of each parent. The Court is also going to consider stability, and what level of stability is maintained in the life and person of each parent. In other words, how has the parent displayed their ability to provide a secure and stable foundation for the child? If one parent, for example, has bounced around 5 different houses in the last 5 years, and one parent has lived at the same house for the last 5 years, then there’s a disparity there which can become a factor. This also refers to personal and interpersonal stability. Can each parent keep a level head and attend to their responsibilities on a regular basis? Are they refraining from bringing an undue amount of new or volatile people into the children’s lives, especially if those people then disappear just as quickly? These are issues that are considered when determining custody, though certainly are not the be-all-and-end-all issues.
• The preferences of the child (if applicable). If the child is old enough to express a preference, then the Court is going to consider the child’s preferences, usually expressed through an attorney that’s assigned to represent them, to a certain degree. However, it should be noted that the weight given to a child’s preferences varies significantly on a case-by-case basis. The primary guideline for the Judge is to act in the child’s best interests. If they Judge finds that the child’s preference is not in their best interest otherwise, they will rule accordingly.
• Parental alienation. The Court will also consider issues of parental alienation. This is a tactic in which one parent violates the other parent’s access rights or encourages the child to have negative associations with their other parent, or otherwise not to have a relationship with their other parent. If those issues are present and credible evidence is brought before the Court, then that’s also a factor the Court may take into consideration.
• False accusation. “False accusation” is a history of instances wherein one parent or the other has filed a false police report or a false child abuse or neglect report against their co-parent. In cases where the allegations were investigated and found to be false, those false accusations can be presented before the Court as a factor for the Court to consider on custody matters.
• Withholding of access. This issue is similar to but not the same thing as parental alienation. It specifically refers to each parent’s track record with adhering to and facilitating the custody and visitation arrangements made and set forth (whether formally or informally) thus far. If one parent or the other violates their co-parent’s visitation rights (especially if doing so disregards Court Orders), or even if one parent is regularly and/or substantially late with pickups or drop-offs, that can also be considered as a factor by the Court.
• Involving a child in parent’s conflict. Unfortunately, parents sometimes lose sight of what is right when they are going through messy breakups. The end of a relationship is often painful and emotionally difficult, but it is imperative for parents to keep their children out of that emotional messiness as much as possible. If there is an accusation of involving the children in these conflicts by either parent (preferably with documentation), it will be considered by the Court.

 Notably, this can be more insidious then just venting to a child inappropriately or making them take sides between parents. One example of more subtly involving a child in a parental conflict would be using the child as the messenger between the parents. I’ve had cases where the father will give the child the child support check he owes, and then say, “Here, give this check to Mommy when you get back home.” That is completely inappropriate and usually a factor the Court is going to consider.

• Mental or emotional conditions. The Court is also going to consider the mental or emotional stability of either parent, in addition to the physical stability of both parents and their homes. Obviously, this applies to serious mental illnesses such as schizophrenia and certain types of bipolar disorder, which while untreated make it impossible for the parent to care for themselves, never mind a child.  However, the Court is also going to consider any so-called “lesser mental illnesses”, such as depression and anxiety, PTSD and C-PTSD, and other things of that nature, to the degree it may affect parenting capacity.
• Criminal convictions. If either parent has any criminal convictions, this may be considered by the Court, though it is truly the most pertinent if the convictions could endanger the child in any way. It is considered the most pertinent if the parent has any convictions, charges, or indicative reports of child abuse or neglect, especially against the child or their siblings.
• Moral character flaws. There is a broad category in the factors that the Court considers in these cases called “moral character flaws.” Moral character flaws are hard to pin down exactly, but it essentially boils down to leading by example. Will the parent be able to lead by example when it comes to morality, based on their own behavior? Obviously, this is a rather subjective question, but if, say, one of the parents has an unaddressed gambling habit that has caused them to steal from their loved ones, and if they primarily associate with other problem gamblers, then a question about their moral character may be raised. The same might be said about problem drinkers. Depending on the circumstances, these may be facts that the Court can consider.
• The physical health of each parent. Beyond any mental stability, mental health, or mental illness, there is also a question of whether either or both parents are physically well enough to be able to care for the child. This issue rarely comes into play, but is theoretically a factor.

 For example, I’ve had some cases where the father has been much older (perhaps in his 60s or 70s) than the mother (perhaps in her 30s or 40s). In those cases, the mother was usually much more physically able to keep up with the kids, and to be able to go out and play with them. This is not usually a major factor, but it very well might be a minor factor that the Court may take into consideration.

I’ve also had cases where one parent or the other has had medical conditions where on unexpected occasions, they would pass out or become unresponsive, or have to be rushed to the hospital because of their medical issues. Certainly, it’s not their fault they have such a condition, but it nevertheless would be a factor the Court would want to take into consideration. This is particularly true when addressing the question of a younger child living in their house the vast majority of the time.

• Illegal conduct vis a vis the other party. In some cases, divorces become fraught enough that one or both parties perpetrate illegal conduct against the other party. Some common examples may include stalking the other party, harassing the other party, violating Orders of Protection, tape recording of the other party without their consent (otherwise known as wiretapping), stealing the other party’s property, and hacking into the other party’s devices or accounts without their authorization. Illegal conduct perpetrated against the other party can be taken into consideration by the Court when determining custody.
• The separation of siblings. The Court often takes the family makeup/dynamic into consideration when deciding custody. This is especially true when it comes to siblings. Ideally, in most cases, the Court does not believe it is in the best interest of a child to separate them from their siblings (whether they are whole siblings, half-siblings, or stepsiblings). It is the tendency of the Court to try to keep closely bonded siblings together. This is also a factor the Court can take into consideration when deciding custody.
• The disparate treatment of siblings or other relatives. If the child is treated differently from other siblings or relatives in the household, and if this may negatively affect their wellbeing, it can also be considered as a factor by the Court. Importantly, this treatment doesn’t have to come from the parent. It could come from any other relative or adult that the parent regularly has in their home and/or in interaction with the child, including grandparents, aunts, uncles, and other family members.
• Inflexible parenting approaches. “Inflexible parenting” is another broad term, but it is often clearly identifiable when you see it. It essentially means a behavior or attitude on the part of one parent that makes co-parenting more difficult than necessary, or even impossible—and/or that seeks to avoid and impede cooperation with the co-parent—in a way that is demonstrably not in the child’s best interest.

An example of inflexible parenting that often comes up is when one parent tries to mandate what the other parent does in their household, beyond issues of basic health and safety. Perhaps one parent eats organic food, and the other parent doesn’t really care one way or the other about organic food. If the organic food eating parent requires or dictates to their co-parent that they have to feed the child organic food when the child is under the co-parent’s roof, this may be considered inflexible parenting.

• Obsessive medical treatment. In some custody cases, there is a recurrent issue in which one parent may be seeking extraneous or undue medical care and treatment for their child. In my experience, this issue usually comes from a custodial parent who’s trying to alienate the child from the non-custodial parent. However, any case in which a parent is determined that there is something “wrong” with the child despite being told the child is healthy—especially when they are trying to prove “damage” from neglect or abuse by the other parent—the Court may consider this as a factor in determining custody. Often, an example of obsessive medical treatment of this sort is “doctor shopping” (i.e., going from one doctor or one child counselor to another until they get one who agrees with their stance), which can definitely be brought before the Court as a factor to consider.
• Moves or relocations. Moving is sometimes part of a parent or family’s life, and is sometimes necessary to tend to work, family, or financial needs. However, there are certain moves by custodial parents which may have the implicit intention of interfering with the other parent’s custody/visitation rights or their relationship with the child. One example is if the custodial parent moved the child far enough away that it would be impossible for the non-custodial parent to access their visitation and custody rights. If this has indeed occurred, it can be considered a display of bad faith on the part of the custodial parent in their continued willingness to facilitate any Court-Ordered visitation, which the Court could take into consideration.
• Financial ability to care for the child. The financial situation of both parties is also a factor in custody decisions to a limited extent. It should be noted that it is usually a minor factor only because whichever parent gets custody will be able to claim that even if they make substantially less than the other parent, they would be getting child support as well. In this way, financial ability can be considered a kind of “muted factor.” Still, if there is a substantial financial difference between the parents, it’s a factor amongst others that can be taken into consideration.
• Voluntary agreements. This factor only applies in cases where the parties had already worked out some kind of agreement or schedule, even informally, about how parenting responsibilities, scheduling, and custody were going to work before they went to the Court to resolve the matter. The way these agreements are considered has a lot to do with whether objections were raised, and whether documentation can be presented by the objecting party attesting to their objection.
• Educational Issues. Another factor the court is going to take into consideration is the education of the children, as well as any educational issues that may arise if either parent was to have a custody decision ruled in their favor. Often, this becomes relevant in situations where there is a major disagreement between the parents about schooling, wherein one parent wants to send the children to one type of school and the other parent disagrees. It also becomes relevant in homeschooling cases, in which the children were primarily homeschooled by one parent. It may also include consideration about the contributions and support each parent provides to the child’s academic life, and to their continued growth and success in school, as well as their school’s community.
• Intentionally misleading the Court. If either party has actual evidence that the other party misled the Court in any way—up to and including perjury—they should definitely present it to the Court as soon as possible. Specifically, you can attempt to bring forth rebuttal evidence or witnesses to rebut the false or misleading evidence or testimony. This can have a significant effect on how the evidence brought by that party is considered by the Court, and therefore on the ultimate outcome reached by the Court.

While this list of factors may seem comprehensive, it is definitely not exhaustive. These are many – but not all – of the factors considered by the Court in these cases. Depending on your case, different factors will obviously be given different degrees of weight in the ultimate decision of the Court. This is up to the discretion of the Court to decide.

A New York family law attorney can help you present the best possible documentation, evidence, and arguments when asking the Court to consider these factors.

For more information on Determination Of Child Custody In A NY Divorce, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (914) 468-0968 today.