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NY Divorce Essentials
Child Custody in New York State

By J. Douglas Barics

Revised June 2007

CustodyCustody cases are unique in that in virtually every other type of case, the court is looking to the past and attempting to reconstruct disputed facts. In a custody case, the court is attempting to look to the future and predict which parent will be the better custodial parent. To this end, the court employs a number of methods, such as relying on past behavior to predict future actions, and the use of expert testimony.

New York's statutory law on custody is sparse. Domestic Relations Law 70 provides that there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child. Similar language is also found in Domestic Relations Law 240. Family Court Article 6 gives the family court jurisdiction to hear custody and visitation cases. However, majority of New York's substantive child custody laws have evolved through case law, and are presented below. Links to the text of many important custody cases are provided for further reading.


Under normal circumstances, only parents have the right to seek custody. For a non parent to even be allowed to file for custody, they must first show extraordinary circumstances. The lead case in New York for the rights of a non parent versus a parent is Bennett v. Jeffereys 387 N.Y.S.2d 821, 40 N.Y.2d 543 (Court of Appeals 1976). In Bennett, the court held that a parent may not be deprived of custody to a non parent "absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances." If extraordinary circumstances are found, then and only then may the court consider granting custody to the non parent if that is determined to be in the child's best interest. But "[a]bsent extraordinary circumstances, narrowly categorized, it is not within the power of a court, or, by delegation of the Legislature or court, a social agency, to make significant decisions concerning the custody of children, merely because it could make a better decision or disposition."


While there is no statutory distinction between physical and legal custody, understanding these concepts is the first step in understanding a custody proceeding. Physical custody refers to where the child lives. Physical custody is sometimes known as residential custody. Legal custody refers to which parent has the legal authority to make decisions involving the child. The three most significant issues involving legal custody are religious, educational and medical decisions. An order of custody is always subject to an order of visitation for the non custodial parent. In some states, the terms custody and visitation are not used, instead the term of art is "parenting time." New York is slowly moving in that direction, however, no matter what term is used the underlying concepts remain the same.


Joint custody was recognized by the Court of Appeals in Braiman v. Braiman, 44 N.Y.2d 584 (Court of Appeals, 1978). Joint custody means joint legal custody, and not how much time the child spends with each parent. Joint custody gives both parents equal decision making authority. Joint custody will allow both parents an equal role in rearing their children, provided both parents can work together to make joint decisions. However, equal authority also means that each parent has an absolute veto over the decisions of the other parent, meaning that complete deadlock on decisions involving the child will result if a mutual agreement cannot be reached. For this reason, courts in New York have held that joint custody is appropriate on consent of both parties, but is rarely awarded after a contested hearing. Joint custody may not be sole custody in disguise. In Williams v. Boger 33 A.D.3d 1091, (3rd Dept. 2006), the Appellate Court, on its own initiative, struck a provision from a joint custody order that granted the petition the final say in the even a mutual agreement could not be reached.


Pendente lite or temporary custody is a custody order issued by the court once the case has been filed but before trial. Pendente lite custody may be requested in a pendente lite motion. Pendente lite means "pending the trial" and this term is usually used in Supreme Court, while temporary custody is usually used in Family Court. At the conclusion of the case, any pre-trial temporary orders are vacated, and a final order is issued.


Most people are familiar with the term "best interests," yet it continues to defy a firm definition. Custody cases are extremely fact sensitive, and each case is decided on its own merits. However, there are certain definitions which are constant from case to case, as well as factors which the courts will consider in determining an initial custody determination.


The following is a list of factors considered by a court in determining what is in the child's best interests. This list is by no means exclusive, and the court can consider factors which are not listed here, and it may choose to ignore any of the listed factors. This list should be used to get a general idea of what a court will consider, keeping in mind that each custody case is extremely fact specific. For each custody case, the court will look at the totality of the circumstances, and not simply one factor. Great deference is given to the trial court by any appeals court. Eschbach v. Eschbach 56 N.Y.2d 167 (Court of Appeals 1982).

Age of Parents

The age of the parents can be a factor, although as a practical matter, it won't play a large role unless the age of one parent is so advanced that he or she lacks the physical or mental capacity to care for a child.

Alcohol & Drug Use

Alcohol and drug use will of course play a role in determining custody. As one would expect, the more one parent uses drugs or alcohol, the more the court will favor the other parent. However, the extent of the drug or alcohol use will be considered in view of the overall facts. For example, in Worowski v. Worowski 95 A.D.2d 687 (1st Dept. 1983), the mother had a history of alcoholism but was improving. But when compared to the 74 year old father who had no meaningful interaction with the child, she was deemed to be the more fit parent.

Availability of Parents

The amount of time each parent has available to spend with the child will be considered by the court. In Jacobs v. Jacobs, 117 A.D.2d 709 (2nd Dept. 1986) the court said that consideration must be given to the availability of a parent to tend to a child's needs. A court will generally favor placing a child with the parent who can spend more time with their child, as opposed to a parent who must rely on others to care for the child when he or she is unavailable. Pawelski v. Bucholtz, 91 A.D.2d 1200 (4th Dept. 1983).

Disability & Physical Health

The physical health of the parents will play a role in determining custody to the extent that it impacts on how well a parent can care for a child. Therefore a physical disability or health issue of a parent will not play a large role in itself. If the disability or health issue materially affects that parent's ability to care for the child, it will be considered by the court. What constitutes 'materially affecting' will depend on each case's own unique facts. For example, in Hatz v. Hatz, 97 A.D.2d 629 (3rd. Dept. 1983), the custodial mother was severely injured and became a paraplegic. Following a trial, the court continued her custody order, after considering the effect of her disability as a custodial parent, as well as the child's academic performance, social activities and the child's wishes.

Domestic Violence

Domestic Relations Law 240(1) requires that the court consider the effects of domestic violence when making a custody determination. The domestic violence need not involve the child to be a factor.

Existing Informal Custodial Agreements

Courts will often turn to the parties to see if there was an implied agreement that one parent was better than the other. Bishop v. Lansley, 106 A.D.2d 732 (3rd Dept. 1984) which articulated the long standing rule that since the children resided with the petitioner for a lengthy time, and since there was no indication that a change would enhance their well being, continuing the status quo was in their best interests. See also Adams v. Franklin, 9 A.D.3d 544 (3rd Dept. 2004), which held the court must consider the duration of the present custody agreement. However, less weight will be placed on a shorter custody arrangement than a longer one. If the parties have such an agreement, as demonstrated by their actions, then the court will conclude that both parents agree that the parent with physical custody is the better parent for the child. The court assumes that without some compelling reason, no reasonable parent would voluntarily allow a child to live in a situation which is not in that child's best interests.

Existing Written Custody Agreements

Courts will strongly consider any written agreement made between the parents, but are not bound by them. See Eschbach v. Eschbach.

Finances of Parents

The finances of each parent will play a role in determining custody. Eschbach v. Eschbach, 56 N.Y.2d 167. It is only when a parent's finances prevent them from securing proper housing does finances play a much more significant role. See Salk v. Salk, 53 A.D.2d (1st Dept. 1976) affirming the trial court's ruling, Salk v. Salk 89 Misc. 2d 883 (Supreme Court, New York County, 1975). However, financial disparity can be offset to a degree by existing or potential child support orders. Indeed, when there is a financial disparity due to the failure to to pay support, such arguments of better finances will be given little weight. Roberts v. Roberts 122 A.D.2d 405 (3rd. Dept. 1986).

Findings of Child Neglect/Abuse

A finding of child neglect or abuse made in Family Court, or a guilty verdict involving endangering children from Criminal Court will almost always result in custody being awarded to the other parent, since such a finding is a judicial determination of parental unfitness. Far more difficult is when neglect or abuse allegations are made in the context of a custody case. If allegations are found to be true, the abusing parent will almost lose custody. However, if the court determines that the allegations were falsely made to obtain custody, the court may very well award custody to the falsely accused parent. See Karen PP v. Clyde QQ, 197 A.D.2d 753 (3rd Dept. 1993).

Forensic Evaluation

A forensic evaluation is an evaluation made by a mental health professional to determine the mental fitness of each parent. Normally, the evaluator will examine each parent alone, the child alone, and each parent with the child. Some evaluators will consider collateral sources as well, and may wish to speak with prior counselors, school officials, other family members, or any one else the evaluator thinks is relevant. Some evaluators will utilize specific tests during the course of the evaluation, others will not.

Upon completion, the evaluator will issue a written report, usually with a recommendation as to custody. Should the case proceed to a trial, the recommendation of the forensic evaluator will carry great weight. Often, the law guardian position will depend on the forensics as well.

Forensic evaluators are witnesses, and will testify and be subject to cross examination.

Home Environment

Home environment will play a significant role in deciding custody. Eschbach v. Eschbach. In Royea v. Hutchings, 260 A.D.2d 678 (3rd Dept. 1999), the court awarded custody to the father after finding the mother's home had become stressful and chaotic, and that the child was not thriving under those circumstances. When the home environment poses a danger to the child, such as in Auffhammer v. Auffhammer, 101 A.D. 2d 929 (3rd Dept. 1984), where loaded guns were left about the home and one was accidentally discharged in the presence of children, less extreme situations will still play a large factor. See Ingalls v. Ingalls 58 A.D.2d 1039 (4th Dept 1977), mother's relationship with her boyfriend involved quarrels and disturbances, and on at least one occasion, the home was unheated, warranted the father being granted custody. Very often the court must determine the better of two home environments, with neither one being bad. Sooy v. Sooy, 101 A.D.2d 287 (3d Dep't, 1984).

Law Guardian

The law guardian is a lawyer assigned by the court to represent the interests of the child or children, and as such will play a role independent than that of the parties. Depending on the age of the child, the law guardian may be an advocate for the child, or the law guardian may substitute his or her own position on behalf of the child, acting more in the role of a guardian ad litem. The law guardian's position may change during the course of a custody case, and it is not uncommon for a law guardian to be undecided prior to trial, especially as new facts continue to develop. Courts will place a great deal of weight on the law guardian's position, but the court is not bound to blindly follow the law guardian.

Law guardians will generally not issue reports, nor will law guardians testify or be subject to cross examination. See Graham v. Graham 24 A.D.3d 1051 (3rd Dept. 2005), in which the Appellate Division said it was improper for the law guardian to file a report or make a recommendation. Instead, the law guardian's job was to take a position which must be supported by the evidence on the record.

Marital Fault

Marital fault will generally not play a large role in determining custody. The Court of Appeals in Harrington v. Harrington 290 N.Y. 126 (Court of Appeals 1943) held that deciding which parent is to blame more for a failed marriage is not the decisive factor in custody, but it will be considered. An act of adultery is minor, Blank v. Blank 124 A.D.2d 1010 (4th Dept. 1986), but when a parent's paramour is brought into the marital home and the children overheard the lovers, the court held that the wife placed her own needs ahead of the children. It is how the events affect the child that will play a factor, not the events themselves.

Mental & Emotional Stability

As common sense would dictate, courts prefer to give custody to a parent who is more stable, both mentally and emotionally. In Thomas J. D. v. Catharine K.D., 79 A.D.2d 1015 (2nd Dept. 1981), the Appellate Division reversed the lower court decision, and awarded custody to the father. In this case, the mother was bipolar, and suffered from extreme mood swings, coupled with being symptom free for lengths of time. The court sympathized with the mother, but held the best interests of the child outweighed any sympathy a parent may have.

Parent's Observable Behavior in Court

A parent's behavior in court will play a significant factor in determining custody. Being argumentative or expressing hostility towards the other parent will be noticed by the judge. Likewise, being reasonable, cooperative and respectful towards the court will help. In court behavior alone will not determine custody, but it can certainly help tip the odds one way or the other, and should not be ignored.

Preferences of the Child

A child's preferences will be considered, but the court is not bound by them. In determining how much weight to give the child's wishes, the court must consider the age, maturity, and consider the possibility of parental influence. Eschbach v. Eschbach. The closer the child is to eighteen, the more weight will be given to that child's wishes. But the court may disregard a child's wishes in determining what is the best interests for the child. In McCrocklin v. McCrocklin, 77 A.D.2d 624 (1st Dept. 1981), the court disregarded the 15 year old child's preference to live with her mother, finding that the child had not done well living with her mother and had begun to mirror the mother's depression. The court noted that the child's preference was based in part on the lack of discipline at the mother's home. To allow a child's wishes to decide which parent they will live with is reversible error. Bergson v. Bergson, 68 A.D.2d 931(2nd Dept. 1979). For younger children, the wishes of the child give way to why a child prefers one parent or another. Many children do not have a preference, and in fact, should not be forced to choose between their parents.(Bergson).

Primary Caretaker

The court will look to see which parent was or is the primary caretaker of the child, and will often assume that parent should continue as the primary caretaker. In Coakley v. Goins, 240 A.D.2d 573 (2d Dep't 1997) the court granted custody to the father who obtained temporary custody in 1994, despite a strong bond between child and the mother. Like any other factor, the primary caretaker alone will not decide the case. In King v. King, 225 A.D.2d (3d Dep't 1996) split custody of the siblings and awarded one child to the mother and one to the father, despite the mother being the primary caretaker. In Eastman v. Drennen, 122 A.D.2d 397 (3rd Dept. 1986), the primary caretaker was the mother, but lost custody to the father based on her continued pattern of custodial interference between the children and the father.


Religion will play a role when a child has been raised as one religion and the parents are of different religions, but religion alone will not determine custody. Aldous v. Aldous 99 A.D. 2d 197 (3rd Dept. 1984). The court will favor the parent who is better able to continue with the child's religious upbringing. Needless to say, trying to change a child's religion, or interfering with a child's religious instructions will not be looked upon favorably by the court.


The existence of siblings, and keeping siblings together is generally considered to be in the child's best interest. Eschbach v. Eschbach. However, courts are not bound to keep siblings together, and in some cases, the court may determine that the best interests of the children require that they be split between the parents if the best interests of each child require placing siblings with different parents. Sandman v. Sandman, 64 A.D.2d 698 (2nd Dept. 1978), Schussler v. Schussler 109 A.D.2d 875 (2d Dept. 1985).

Willingness to Foster the Child's Relationship with the Other Parent

The court will place a significant weight in each parent's willingness and ability to foster a relationship between the child and the other parent, and evidence of efforts to alienate the other parent will be a strong factor. Walden v. Walden 112 A.D.2d 1035. (2nd Dept. 1985).. A parent's continual willful interference between the child and the other parent can result in custody being awarded to the other parent. In fact, a custodial parent's interference alone can in many cases, be a sufficient basis to consider changing an existing custody order. See Frank R. v. Deborah Ann R. 204 A.D.2d 615 (2nd Dept. 1994). However, this factor alone will not be sufficient to change custody without looking at the totality of the circumstances. Juneau v. Juneau 240 A.D.2d 858 (3rd Dept. 1997). In Eastman v. Drennen, 122 A.D.2d 397 (3rd Dept. 1986), the mother's antipathy towards the father and effects it was having on the children warranted a change of custody to the father, despite the court's finding that she was the primary caretaker.


Courts will use a two prong test when asked to modify custody. The party seeking to modify custody must first show a change in circumstances since the last order. If a change in circumstances is shown, then it must be proven that modifying the order is in the child's best interest. The mere filing of a petition does not automatically grant an entire hearing, instead there must be a showing of some evidence requiring one. Grassi v. Grassi 28 A.D.3d 482 (2nd Dept. 2006)


The article "Child Custody in New York State" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.

If you have any questions or comments, please feel free to contact Mr. Barics at or (631) 864-2600. For more articles and information, please visit

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