Best Interests of the Child

In all custody proceedings in New York, the main concern for the court in awarding custody is the “best interest of the child.”  The “best interest of the child” test means that the courts are required to balance the ability of each parent to meet the needs of the child or children.

The court will determine child custody based on the “best interest of the child” test 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 the factors.  These factors include the following:

  • 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 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, and are more likely to give custody to the parent who will encourage the child to build a relationship with the other parent.

In addition, the court may also consider any other factor that might affect the best interests of the child.

Legal Editor: Angela Barker, January 2015


Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

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