Last Updated On: December 21, 2022

How Does a Court Decide Who Gets Custody of a Child?

Before beginning a child custody proceeding, it’s a good idea to know how the courts determine child custody and what they are looking for.

In New York, the standard the court uses in making a child custody determination is the “best interests of the child.”  The “best interests of the child” standard requires the court to balance the ability of each parent to meet the needs of the child or children. The court will determine what custodial arrangement is in the “best interests of the child” by evaluating a number of factors.  It is rare that one factor by itself will determine custody. Instead, courts will make a finding on custody based on the totality of several factors.  These factors include the following:

Custody lawyer on New York City
  • Stability. Priority in custody disputes is usually given to the parent who is first awarded custody, either by the court or by voluntary agreement between the parents.  For example, if the other parent leaves the home and you raise the child for a period of time without the other parent’s presence in the home, the court would weigh the stability of keeping the child in the home, rather than changing custody to the other parent;
  • Child care arrangements. Often, both parents have to work, and priority may be given to the parent who has better child care arrangements.  For instance, if the other parent has significantly better child care arrangements than you, this factor may affect a custody arrangement;
  • Primary Caretaker. Priority in custody disputes may be given to the parent who was the primary caretaker of the child before the divorce or separation.  For instance, while you and the other parent lived in the same household, if the other parent spent significantly more time taking care of the child while you worked or did other activities, the other parent, as the primary caretaker, would be more likely to be awarded custody;
  • Drugs and alcohol. Evidence of drug and alcohol misuse can affect the award of custody, with the parent who has a substance abuse problem being less likely to receive custody;
  • Mental Health of the Parents. Untreated mental illness, personality disorders, or emotional instability and/or poor parenting may affect a custody award, with the parent who is suffering from those conditions being less likely to receive custody;
  • Physical health of the parent. Severe physical illness/disability that greatly affects one parent’s ability to care for the child may affect a custody award, with the parent suffering from such a condition being less likely to receive custody;
  • Spousal abuse. Evidence that one parent has committed domestic violence against the other parent, especially in the presence of the child, will affect a custody award, with the parent who committed such acts against the other parent being less likely to receive custody;
  • Abuse, Neglect, Abandonment and Interference with visitation rights. Evidence that one parent abused, neglected or abandoned the child will affect custody, with the parent who committed such acts against the child being less likely to receive custody.  Also, evidence that one parent has significantly interfered with the visitation rights of the other parent may cause that parent to lose custody;
  • Child’s preference. A child’s preference to live with one parent may be taken into consideration, depending on the age of the child.  The closer the child is to 18 years old, the more weight the court will give to the child’s wishes. However, the court will look closely at the reasons why the child prefers to live with the other parent.  For example, if the child prefers to live with a parent who is not disciplining the child and who does not set appropriate boundaries for the child, then the court may find that would not be in the child’s best interest to live with that parent;
  • Finances of each parent. Courts will consider which parent can provide financially for the child.  For instance, if one parent is unable to afford housing, then this may have a negative impact on giving custody to that parent;
  • Conditions in the home environment. Courts do not want to place a child in a dangerous or unhealthy household.  For instance, if one parent’s household poses dangers for the child, such as a new partner that is violent, or frequent parties at the home, or dangerous items kept in the home, this could affect custody, with the parent in the dangerous household being less likely to receive custody;
  • Educational opportunities. If one parent is able to offer the child much better educational opportunities, such as a great school district or a school that meets the child’s special needs, then this may affect custody, with the parent who is better able to meet the child’s academic needs being given custody;
  • Where the child’s siblings live. Courts prefer to keep siblings together whenever possible.  If the child has siblings or half-siblings living with one parent, this may affect whether that parent receives custody.
  • Court’s observations of the parents. Courts will also consider the parents’ behavior in court: demeanor, appearance, temperament, and presentation all can be considered.  The Court is also more likely to give custody to the parent who shows that they will encourage the child to build a relationship with the other parent.

As a catch-all, and because each case is decided on a case-by-case basis, the Court may also consider any other relevant factor that might affect the best interests of the child.  Being informed about the criteria the Court looks at will help you put your best foot forward in court and avoid common mistakes that can hurt your chances at being awarded custody.

Visitation Rights for Parents in NYC

New York’s visitation rights are usually filed as part of a case for divorce, custody, or paternity. A New York minimum visitation schedule would give noncustodial parents (parents without primary physical custody) a few hours each week and overnight visits every other Saturday. Noncustodial parents may be granted more, but not less visitation by a judge. The visitation schedule will include information about each parent’s holiday and summer visits.

Both parents have the right to frequent and consistent visits with their children. Even with a history of substance or domestic abuse, a judge will usually not revoke parental visitation rights.

A judge may also order supervised visits if he or she is concerned about the safety of a child visiting an abusive parent. Supervised visits can be conducted at an agency, or under the supervision and agreement of a third party.

Modifying Child Custody Orders in New York

Custody orders are valid until the child turns 18, is emancipated, or when the child custody order is modified. There are situations where the circumstances of a parent or child might change. A request to modify custody can be made by either parent. However, a judge won’t consider a custody modification unless there has been a material shift in circumstances that significantly affect the child’s best interest.

A judge might schedule a hearing to hear evidence supporting the custody modification. Normal life events, such as the birth of a child or the remarriage of parents, is not a valid ground for the modification of child custody. However, major changes like a parent’s diagnosis of cancer, a relocation abroad, or a child’s sudden failing grades may warrant a custody modification. The child’s needs will ultimately determine whether or not the custody modification will be granted.

This article is written for informational purposes only and should not be considered legal advice. Each family is unique, each case is different. If you find yourself in a situation involving custody issues it is often a good idea to consult with an attorney to discuss the unique aspects of your case before taking action. Whether you want to move forward with a child custody case in Brooklyn, Bronx, Queens, Manhattan, Westchester County, or New York City, the attorneys at The Law Office of Ryan Besinque, PC can help you with filing for your parenting plan. Call or text us at (929) 251-4477 or email us at for a consultation.

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