New York child custody: What is in the child’s best interest?

If parents cannot negotiate an agreement about custody, the judge will decide all related matters in light of the child’s best interest.

For a divorcing spouse, contemplating an unknown future is stressful, especially when issues of child custody and visitation are on the table. New York law requires that judges base decisions of child custody and visitation on justice and children's best interests.

Two kinds of custody must be determined. Physical custody decides with which parent the child will primarily live, while legal custody awards the right and responsibility to make major life decisions for the child such as those concerning school, health, religion and so on. Each type of custody may be jointly shared or granted solely to one parent.

Visitation is also part of the custody issue. A parent is usually granted visitation rights to spend time with a child when the other parent has sole or primary physical custody. Visitation is usually reflected in a preset schedule of when the child will spend time with the "visiting" parent, often on certain days of the week, and designating how birthdays and holidays will be shared.

Often the parents can avoid litigation and arrive at an agreement on custody and visitation through negotiation, usually through their respective lawyers. Other less adversarial methods of resolving disputed issues in divorce are mediation and collaborative law. However, when no agreement is reached, the New York judge as part of the divorce proceeding has wide discretion to decide these issues in the child's best interest.

The New York custody statute is quite brief compared to those of some other states. Basically, it says that custody and visitation is within the judge's discretion, considering what justice requires in the circumstances of the family and parents, and in the best interest of the child. State case law says that the totality of the circumstances should be examined.

Interestingly, many other states' custody statutes say that the judge is to consider all relevant factors including those in a specific list. The New York law neither mentions factors nor includes a list of them, but state cases reflect that judges do weigh relevant factors like a child's need for stability, a child's preferences, parental ability to provide guidance, parental fitness and stability, history of parenting performance, willingness to promote an ongoing relationship between the child and the other parent, desirability of continuity of a previous arrangement, home environment, emotional health and more, depending on the circumstances.

The law sets out specific requirements about how the judge is to handle allegations or evidence of domestic violence, child abuse and parental convictions for murder or similar crimes, or sexual offenses. In addition, in certain circumstances, the court has power to craft an appropriate order for protection to limit contact or actions of a parent who may present a safety risk.

In the custody determination, the judge must review prior orders of custody or visitation, related court orders or warrants, and check the statewide databases of orders of protection and sex offenders.

Special custody and visitation provisions are included in the law for parents in military service.

Any New Yorker facing divorce, including issues related to children, should seek the advice and counsel of an attorney who can answer questions in light of the particular circumstances. Legal counsel can review the pros and cons of different ways to proceed in the divorce process in light of the client's goals and needs as well as those of any children involved.

With offices in Garden City, East Hampton and New York City, lawyers at Librett Friedland, LLP, represent clients in divorce and other family law matters throughout the New York City and Long Island area.