Best Interests of the Child

In deciding custody and visitation, New York courts consider that the “child’s health and safety shall be the paramount concern.” There is no specific definition of “best interest.” Instead, when making a decision, the courts consider many factors.

These factors include the following:

• Stability. Priority in custody disputes is usually given to the parent who first gets custody, either by court order or by voluntary agreement between the parents. For example, if the other parent leaves the home and you are caring for the child without the other parent’s presence in the home, the court will consider the stability of keeping the child in the home, rather than changing custody to the other parent.
• Primary Caretaker. Consideration is given to the parent that has been the main care giver/nurturer of the child. Some factors in determining the primary caregiver include bathing, grooming, dressing, planning and preparing meals, arranging for and attending health care appointments, assisting with homework, and others.
• Childcare Arrangements. The court considers work schedules and the childcare plans of each parent.
• 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 may affect a custody award.
• Physical and Mental Health of the Parents. The courts will consider the parents’ overall health and physical ability to care for the child. If a parent is significantly impaired, disabled, or ill and unable to care for the needs of the child, this will factor into the court’s decision.
• 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.
• 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. What the child wants, depending on the age and maturity of the child will factor into the court’s decision. 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. The courts consider which parent is better equipped to offer the child educational opportunities that meet the child’s academic and other needs, such as a school that meets the child’s special needs.
• 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.

When awarding custody and visitation, the courts do not rely on solely one factor, rather they consider the totality of the circumstances to determine the “best interests” of the child.

Last Updated January 2026