How Is Custody Determined In New York When Parents Are Divorcing Or Separated?

Custody of children is divided into two primary domains: physical and legal. Physical custody pertains to the parent with whom the child will primarily reside. Legal custody pertains to the authority of parents to make decisions for the child. The overarching legal standard for the award of both kinds of custody is the “best interests of the child,” in other words, “what would be best for the child,” not “what would be best for either parent.”

Legal custody is itself divided into three secondary domains: decisions pertaining to the religious faith in which the child will be raised, decisions pertaining to the education of the child, and decisions related to the medical care of the child.

In my experience, shared physical custody is rarely sanctioned by the Court. Foremost, it requires the parents, who couldn’t work out their marriage or relationship, to somehow amicably agree upon equal time in separate homes for the same child. Two homes one school. Two homes one set of friends. Two homes one happy healthy child.

More often, one of the two parents will be awarded physical custody. The likely inevitability of this outcome often leads to a late season surge of enthusiasm on the part of the heretofore less involved parent to prove their suitability for the award. It’s usually too late.

Legal custody is more easily, and therefore more frequently shared. Ideally, both parents will always agree upon what is best for the child they mutually love. When this fails, court ordered decision making authority resolves the impasse. However, with decision making authority usually comes an obligation to meaningfully consult the other parent, and meaningfully consider their input, prior to exercising the authority.

Often an agreement will be brokered in which there is “Joint Legal Custody with Physical Custody and Final Decision-Making Authority to the Primary Caregiver.” This means that the parent who has been the primary caregiver of the child prior to the commencement of the divorce will be the parent with whom the child primarily resides, and will also have the authority to make final decisions for the child in the realms of education, medical care, and religion, but only after meaningful consultation and consideration of input from the other parent.

Sometimes Joint Legal Custody is effectuated with the assignment of “spheres of influence,” where one parent has final decision-making authority over future educational decisions, and the other has final decision-making authority over future medical decisions (rarely in my experience is religion much of an issue: once established it usually remains unaltered, and follows its own course).

“Spheres of influence” is an advantageous arrangement for the parent without physical custody, because in the absence of a “sphere of influence”, the obligation to meaningfully consult can be a meaningless obligation. Where there are “spheres of influence,” both parents have an incentive to honor their obligation to meaningfully consult, and meaningfully consider the input of the other, because this year’s decider may be next year’s consulter.

The parties to a divorce can always agree between themselves to a joint custody arrangement, or a sole custody arrangement that fits their individual circumstances. However, the Court has a say in the agreement. This is because of the Court’s underlying obligation to always do what is best for the child, even if it means rejecting an agreement between both parents that, in the Court’s wide discretion, is contrary to the interests of the child.

When the Court deems one parent less fit, or where it is clear that the parties cannot be relied upon to set aside their own animosity for each other and work together to ascertain and implement what’s best for their child, or where one parent concedes primary parental authority to the other, the Court will award sole custody to one of the two. This means that the custodial parent will be the primary care giver, the parent with whom the child resides, and the decision maker for the child without any obligation to consult the non-custodial parent prior to rendering decisions on the child’s behalf.

Sole custody to one does not mean the loss of all parental rights by the other. Even in the face of an award of sole custody to the other, the non-custodial parent retains the right to meaningful access to the child, and the right to custody of the child should the custodial parent become unfit. In fact, meaningful access is a right shared by both the non-custodial parent and the child itself, as meaningful access between the child and both parents is regarded by the Court as being in the best interest of the child.

As with all aspects of family law, the Court will endeavor to broker an agreement between the parents for the custody of their child that is fair to both parties, while satisfying its own obligation to do what is best for that child. When this cannot be accomplished, the Court will be required to ascertain the fitness of both parents to be awarded custody, and will then be required to render a decision between the two. This can be a grueling and expensive process for both parents, involving both an investigation of the competing parents and their circumstances, and then an evidentiary trial of their competing claims.

The investigation of the parents will include an inspection of the prospective homes where the child might reside; investigation into the parents themselves by trained child welfare investigators and court appointed psychologists; interviews of “collateral sources” such as extended family members, caretakers, medical providers, and teachers; the appointment of an attorney for the child to give voice to the child’s perceptions and preferences; and depending upon the age of the child, sometimes a private conversation between the judge making the decision and the child itself.

General Information:

• What Sorts Of Visitation Arrangements Can Be Agreed Upon Or Ordered?

At the trial, called a “Custody Hearing,” the Court is mandated to look at the “totality of the circumstances” in order to ascertain the decision that will satisfy the “best interests of the child.” In more practical terms, the Court will be seeking to ascertain which of the two parents is more fit to be the custodial parent. There are categories of parental fitness that will be addressed by the attorneys via testimony and evidence, and that will be examined by the Court in order to make its decision. The following are some of the categories that will be addressed during a custody hearing:

1. The Status Quo: When it comes to an award of physical custody of a child, in the absence of other inadequacies on the part of one of the two parents, the wisdom of the Court generally holds that the change that is least is the change that is best.
   Divorce, or separation of parents into two households, is a big change in the life of a child, but that can’t be helped by the Court. The analysis of the Court will therefore largely focus on which of the two parents has been the “primary caregiver” prior to the time that the divorce or separation was commenced. Traditional familial roles being what they are, this analysis often leads to a perception that the law of custody favors the female parent. However, traditional familial roles are in flux, and the law of custody as written is gender neutral. With families in which the mother is the primary earner of income and the father is the primary provider of child care, physical custody will likely go to the father. Where these roles are reversed, physical custody will likely go to the mother. With same sex couples, the analysis is the same.
   When one parent has already been the primary caretaker, this will be an important factor in the Court’s analysis of who should be the primary caretaker going forward. Even if the child care responsibilities have previously been shared equally by the parents, if the parents subsequently enter into their own informal child care arrangement, for instance, if one parent moves out of the home leaving the other parent in the home with the child, the Court will be very hesitant about undoing that arrangement. As indicated above, the change that is least is the change that is best, even if the “status quo” has not been in place for a very long time.
2. Quality of the Home: The Court will look at the physical safety and even the desirability of the prospective homes in which the Child may primarily reside once an award of custody is made. If one home is physically unsafe, obviously that will be a major factor. However, when parents separate, it is often the case that all of the comforts of their lives get downgraded. Obviously, the parent who retains the home where the child has been living, and which is familiar to the child, has an advantage. Conversely, if the parent who has moved out is unable to provide the child with a separate room with a separate bed, that parent is at a serious disadvantage.
3. Mental and Physical Health of the Parents, Abuse or Neglect of the Child: These factors will be investigated and the findings made available to the attorneys, and often, either the investigator and/or the forensic psychologist will be called as witnesses to give testimony.
4. Domestic Violence: Often, where there has been domestic violence between the parents, the parent who is the subject of the abuse will be asking the Court to grant him or her an Order of Protection against the abusing spouse. In such cases, the allegations of domestic violence will be addressed by the Court prior to the consideration of any other factors. This is because proof of domestic violence, especially if it is committed in the presence of a child, is a significant factor to be weighed in the Court’s determination of a parent’s fitness to be the primary custodian of a child.
5. Interference with Visitation: As stated above, once an award of custody is made, the non-custodial parent retains a right of access to the child, and the child retains a right of access to the non-custodial parent. One of the factors that will be carefully considered by the Court is whether the prospective custodial parent is likely to honor the rights of access that will persist between the non-custodial parent and the child. If there is a history of unreasonable interference by one parent in the relationship between the child and the other parent, if one parent, for example, attempts to preemptively move the child to another jurisdiction to obtain a legal advantage or separate the child from the other parent, or has engaged in a course of conduct intended to poison the relationship between the child and the other parent, proof of this conduct is powerful evidence that the “alienating” parent will not honor the relationship between the non-custodial parent and the child, and is therefore unfit to be awarded custody.
6. Child’s Preference: As stated above, if the child is old enough, an attorney will be appointed by the Court to represent the child and make the child’s preferences known to the Court. The evidentiary weight that will be accorded to the child’s preferences will depend upon the individual child: how old and mature is the child, and is there evidence that the child is being influenced by one of the parents? Generally, the preferences of small children, more or less under eight, will be given very little weight by the Court, the preferences of children between ages nine and thirteen will be considered but weighed against other factors, and the preferences of children aged fourteen and older will be given very serious, and often conclusive consideration.
   It is highly unlikely that a child will ever be called as a sworn witness to testify at a custody hearing. Instead, as stated above, the Judge hearing the case will often have a private conversation with the child, with only the child’s attorney present, to hear from the child directly. While the parents of the child will be excluded from the meeting, a written transcript of the meeting will be produced, and made available to the parents and their attorneys in order to provide parents with the opportunity to challenge what is said at the meeting.
7. Siblings: While not an “absolute” rule, the separation of siblings is seriously frowned upon by the Courts. Thus, where there are multiple children of the same parents, the custodial parent of one will likely be the custodial parent of all. In a case in which a half sibling has grown up in the same household as the child of the divorcing or separating parents, the parent with custody of the half sibling has an advantage, as the Court will not wish to separate the siblings.

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