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How Is Child Custody Determined in a New York Divorce?

How Is Child Custody Determined in a New York Divorce?

A divorce can be difficult for everyone involved, including not just the divorcing spouses themselves, but other family members, including any children they share. For divorcing parents, child custody is often one of the most important and contentious issues that must be resolved as they go about the process of dissolving their marriage. Parents in New York should be sure they understand how the state’s laws apply to their situation.

Legal and Physical Custody

New York’s laws identify two different types of child custody: legal custody and physical custody. Legal custody refers to a parent’s right to be involved in decisions about how their child will be raised, including their education, any medical care or treatment they will receive, and whether they will attend church or receive religious training. In many cases, parents will share joint legal custody, meaning that they will have an equal say in decisions about their children. However, there may be situations in which legal custody is awarded solely to one parent, such as cases in which a parent has committed domestic abuse or is otherwise found to be unfit.

Physical custody refers to the actual time children spend with each parent. While parents may share joint physical custody in which children spend approximately 50% of the time with each parent, in many cases, children will reside primarily with one parent, and they will have visitation time with the other parent.

What Is the “Best Interest of the Child?”

Divorcing parents may be able to reach an agreement about how to divide or share physical and legal custody of their children. However, if they cannot resolve these matters between themselves, decisions about child custody will be left up to a judge in domestic relations court. In these cases, the judge will base their decisions on what is in the best interest of the child. New York state laws do not provide an exact definition of “best interest,” but when making these decisions, judges will typically consider the following factors:

  • Which parent has historically been the primary caretaker who spent the majority of the time meeting children’s daily needs.
  • The child’s preferences, with more weight being given to the child’s opinions as they get closer to the age of 18.
  • The parents’ physical and mental health, including whether either parent has a history of drug or alcohol abuse.
  • Whether either parent has interfered with the other parent’s visitation rights.
  • Each parent’s ability to provide for the child financially.
  • The conditions of each parent’s home and the educational opportunities available to the child at each location.
  • The parents’ ability to cooperate with each other.
  • Any history of spousal abuse, child abuse, or child neglect or abandonment on the part of either parent.

Contact a Brooklyn Divorce Attorney

While you may believe that you are the parent who can better provide for your children’s best interests, it is essential to have a skilled attorney on your side who can help you demonstrate this to a judge. To schedule a free consultation and learn more about how we can help you reach a positive outcome to your divorce, contact our New York City child custody lawyers today at 718-514-9516.


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    1628 Kings Highway at East 17th Street
    Brooklyn, New York 11229
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