Determining Child Custody

The overriding concern of the court in determining custody is “the best interests of the child.”  As you can imagine, this phrase can mean different things to different people, so the appellate courts in New York have enumerated various factors that trial courts should consider when making an initial custody determination.

An important factor is the stability of the home environment. The place where the children call home and have grown attached is clearly important for many reasons, not the least of which is the emotional upheaval that leaving it would entail.  Friendships and schooling are also clearly important.  However, as the Court of Appeals has stated, the disruption of change is not necessarily determinative.

Also important are the desires of the children. However, these can be manipulated and, even if not, may not be in the best interests of the child. For this reason the stated preference of a younger child to reside with one parent may be given little weight. Conversely, the stated preference of an older child, perhaps 15 or 16 years old, may be given great weight, and may be determinative unless there are substantial reasons weighing against it.

The relative fitness of the parents is also an important concern.  A parent with a history of drug or alcohol dependence, or a penchant for self-interested or risky behavior would obviously be a less desirable custodial parent.  Relative fitness is not always a comparison of negative attributes.  One parent may, by education or training, be a more fit parent than the other.

A parent’s ability to foster the intellectual, emotional and/or physical needs of the child is also a critically important factor.  The parent that helps a child with homework, or makes the doctor appointments is clearly the better choice for custodial parent.

Tending to the emotional needs of a child can be even more important.  In particular, a parent’s willingness to ensure that the other parent has meaningful access to the children is a significant factor.  It is assumed that a good parent is a parent who wants his or her children to have the benefit of two loving parents, and who works to ensure that the other parent has as much time with the children as their schedules reasonably allow.

Conversely, conduct that undermines the children’s relationship with the other parent has, in many instances, been the determining factor in a custody contest, outweighing other factors that would, in the normal course, seem more important.  There are now many cases in which a parent who has long taken care of the children’s daily care, and their schooling and medical needs, loses custody because of a lingering hatred of the other parent that has come to infect the things said about and done in regard to the other parent in front of the children.  Courts have become more vigilant in rooting out parental alienation, upsetting many established custodial relationships where it is deemed necessary for the children to maintain healthy relationships with both parents.

There are numerous other factors that may be considered by a court, some even case specific. It is important if you are facing a disagreement about whether to have a shared custody arrangement, or which parent will be the primary custodial parent, that you consult with an experienced matrimonial or family attorney.