How Is Child Custody Determined In New York?

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 a 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.

Beyond unfitness issues, then the Court is going to look at the evidence to determine which parent is considered the “primary psychological parent.” This is an umbrella legalistic term for the parent who has performed the majority of the parenting tasks which 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

Like any other matter is proven in Court, claims regarding which parent does which task have to be documented with corroborating evidence. As such, you are generally going to need documentary evidence (or witness testimony) to corroborate the claims in order for it to have a meaningful chance of making a difference to the Court.

• 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 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 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 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 the child’s preference is not in their best interest otherwise, they will rule accordingly.