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Articles: Divorce and Matrimonial Law

Child Custody in New York State
How Custody is Determined in a Divorce or Family Court Proceeding

By J. Douglas Barics
Revised August 2019

1. How New York Determines Custody of Children

Custody 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 to assist it in making this prediction.

New York's statutory law on custody is sparse. Domestic Relations Law 70 provides that ethere shall be no prima facie right to the custody of the child in either parent in all cases, and that the court shall determine solely in the child's best interests. 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.

2. Parents Have a Superior Right to Custody over Non Parents

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."

3. Residential Custody and Legal Custody

While there is no statutory distinction between physical and legal custody, and not every judge uses these terms, they are useful in a broad sense to understand concepts behind the law of custody.

a. Residential Custody

Residential custody, also known as physical custody refers to where the child resides. It establishes the child's legal address, the child's school district and the child's state of residence.

b. Legal Custody

Legal custody refers to which parent has the legal authority to make decisions involving the child. For sole custody, one parent has decision making power. For joint custody, both parents have equal authority.

4. Parenting Time

Any order of custody is always subject to parenting time. The term "parenting time" has largely replaced the older term of "visitation," on the basis that parents do not visit their children like a non parent would, but instead parent them when the children spends time with each parent. Parenting time should be set by the Court and not subject to the child's wishes. See Heather SS v Ronald SS. (3rd Dept. 2019)


5. Joint Custody

Joint custody is not authorized by statute. It refers to joint decision making authority under which both parents have equal authority. Conversely, it also means each parent has an absolute veto over the other parent, and in a worst case scenario it means complete stagnation of all parental decision making.

There are two schools of thought on joint custody. The first, which is currently held in a majority of states, is that joint custody should be presumed and if a parent wishes sole custody, that parent must show sufficient reasons why joint custody is not appropriate. The second line of thinking is held by a minority number of states, including New York. This line of thinking says that since joint custody requires mutual decision making to work, it will not be imposed on the parents by the Courts, since if the parents cannot agree to joint custody, they will be unlikely to agree on joint decisions under a joint custody order. New York has been moving away from this position and Courts are now awarding joint custody after a hearing.

Prior to 1978 it was unclear if joint custody was authorized. That issue was decided by the Court of Appeals in Braiman v. Braiman, 44 N.Y.2d 584 (Court of Appeals, 1978). In Braiman, the parents initially had a custody agreement where the mother was awarded custody. Following a hearing, the Supreme Court modified the order and awarded custody to the father. The mother appealed and the Appellate Division awarded joint custody to both parents. This order was stayed and the father appealed to the Court of Appeals. The Court of Appeals acknowledged the right to joint custody, but noted the mother's whereabouts were not disclosed and the record was silent as to why.  Instead of vacating the Appellate Division, the Court of Appeals noted the record was hopelessly convoluted and full of contradictions to such an extent it could not resolve them on the issues of credibility, and sent the matter back to Supreme Court for further proceedings.

The Braiman decision gave a discussion as to the merits of joint custody, and the problems associated with it, and this decision reflects an era when joint custody was relatively new; that it was good in rare instances, but that it was the exception not the rule.

After Braiman, the 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.

However, recent case law has shown that New York Courts are awarding joint custody following a hearing. In Argila v Edleman, (2nd Dept. 2019), the Second Department affirmed a Family Court order made after a hearing which modified the prior order and awarded joint custody to both parents. The standard in awarding joint custody is stated in the Matter of Carter v Carter (2nd Dept. 2013) which stated "joint custody is appropriate where the parties involved are relatively stable, amicable parents who can behave in a mature, civilized fashion"

6. Pendente Lite Custody

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.

7. How Custody is Determined: The Best Interests of the Child

Custody is determine by a best interests standard. It is found in statute in DRL 70, which states the child's best interests applies to all cases. In the 1969 case of Lincoln v Lincoln, the Court of Appeals ruled that the interests of the child are superior to the interests of either parent. The Appellate Division cases of Saunders v Saunders and Sandman v Sandman also used a best interests standard. It was the 1982 case of Eschbach v Eschbach (Court of Appeals 1982) which expressly adopted the best interests standard for custody. In that same year, the Court of Appeals also rejected an argument that a custody agreement prevents a court from awarding custody on different terms. See Friederwitzer v Friederwitzer (Court of Appeals 1982). Taken together these two cases give the foundation for all custody determinations.

Custody is to be determined in the child's best interests looking at the totality of circumstances, with no single factor being dispositive,

8. Factors to be considered by the Court in Determining the Child's Best Interests based on the Totality of the Circumstances

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), provided there is a sound basis in the record. Shali D v Victoria V. (1st Dept 2019), which states the factors used. Rosenberg v Rosenberg (2nd Dept 2016), Lionel PP v Sheri QQ. (3rd Dept. 2019).

a. Absence of Parent

A parent with a history of absence from a child's life will obviously play a significant factor in determining custody.

b. 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.

c. 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.

d. 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).

e. 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. However, under the American with Disabilities Act, a disability in itself cannot be used not to award custody.


f. Disregard for Court Orders

A parent with a history of disregarding court orders will be viewed as a parent who is less likely to follow them in the future, which in turn, will be a factor in determining if that parent will abide by any agreement or order.


g. 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.

h. 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.


i. 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.

j. 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).


k. 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).



l. 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).


m. 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.


n. 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.

o. 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.

p. 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). Likewise it is improper for a court to defer parenting time to a child's wishes. Heather SS v Ronald SS. (3rd Dept 2019)

q. 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.

r. Religion

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.

s. Siblings

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).

t. Tardiness of Parent

A parent who is habitually tardy when they see their children will be a factor in determining custody and parenting time, especially if the parenting time is set by a court order.


u. 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.

9. Modification of Custody

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). In these cases, a motion for summary judgment is proper. See Elisa N. v Yoav I. (First Department 2019) which affirmed a summary judgment order dismissing the application to modify custody on the grounds there were no disputed facts sufficient to modify the existing order.

About J. Douglas Barics
J. Douglas Barics is a custody lawyer located in Commack NY who regularly represents individuals in all divorce and family law matters.

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