Child custody can be an emotional and contentious aspect of a divorce case. However, the parents’ preferences or objections are not what determine the custody decision. The court will focus on what is in the best interests of the child. There is no statutory definition of the term “best interests” in New York. Rather, there are specific factors that a judge will take into consideration.
The best-interests standard is used to determine two types of child custody. Physical custody, also known as residential custody, refers to where the child lives and who will be their primary caretaker. Legal custody means who has the authority to make decisions regarding the child’s education, healthcare and religious upbringing.
Factors a court will consider when determining the best interests of a child include:
- Stability — The court will consider the amount of time a parent spends in the home and the child care arrangements during their absence.
- Physical health of the parents — A parent’s illness or disability can potentially affect their ability to care for the child.
- Drug and alcohol use — A parent’s substance abuse problem may be found to have a harmful effect on a child.
- The mental health of the parents — An untreated mental illness could make a parent unable to provide proper care or could expose the child to danger.
- Evidence of abuse — Evidence that a parent has committed abuse against the other parent or the child can weigh heavily against a custody award.
- Where the siblings live — Courts generally like to keep siblings together whenever possible.
- Educational opportunities — One parent may be better able than the other to provide the child with good schooling.
- The home environment — A court will evaluate whether there is evidence of an unhealthy home that could pose dangers to the child health and safety.
- The financial condition of each parent — A parent must have sufficient means to care for the child, though child support from the other parent will be considered.
- The court’s observations of each parent — A judge can base custody in part upon observations of the parents in court, taking into account each parent’s willingness to encourage the child to have a relationship with the other parent.
- The child’s preference — Depending on how old the child is, their preference to live with one parent or the other may be considered.
Physical child custody may be shared between the parents, with one of them granted primary placement and the other granted visitation. Courts rarely deny a parent visitation unless the child’s welfare would be in danger by spending time with that parent. In such cases, a court will consider whether supervised visitation would be an appropriate solution.
Goldberg Sager & Associates provides knowledgeable counsel for child custody matters in New York. Call 718-514-9516 or contact us online to schedule a consultation at our Brooklyn office.