Lynch Schwab, PLLC

News and Events

How is Child Custody Determined in New York?

Determining child custody can be a complicated legal issue, whether as part of a divorce or as an isolated legal matter. When child custody is contested, the interactions between parties can often become extremely hostile and acrimonious, which generally is not a positive experience for anyone, including the child or children involved. As a result, it is advisable for anyone involved in a child custody dispute to retain the services of an experienced Westchester divorce lawyer as soon as possible. An attorney can act as a level-headed and emotionally neutral advocate, making sure that your interests and rights are represented zealously and in best light possible. 

New York statutory law is largely silent on the issue of child custody, only stating that neither parent has an automatic right to custody (meaning that there is no presumption in favor of either the mother or the father), and that the court shall determine solely what is in the best interest of the child. This lack of clarity leaves it up to the courts to develop what the phrase “best interests” means and how it is to be determined. 

Through case law, the courts have developed a set of factors that courts weigh in determining what type of custody arrangement will be in the best interest of the child or children at issue. These include the following:

  • The parent who has been the primary caretaker
  • The need for stability and continuity in the child’s life
  • The relative financial ability of each parent
  • The quality of home environment and the parental guidance each parent provides;
  • The ability of each parent to provide for the child’s emotional and intellectual development
  • The relative fitness of each parent
  • The length of time the present custodial arrangement has been in effect
  • The desires of the child

None of these factors are dispositive and courts may consider other factors they deem relevant. For example, courts generally hold that keeping siblings together is in the best interests of the child. In addition, if there is an agreement between the parents as to which parent should have custody, courts will honor that agreement as long as there are not “extraordinary circumstances” indicating that they should not. In a situation where custody is disputed, however, each party is able to present evidence in favor of their having custody of the child or the children. Some of the kinds of evidence a litigant in a custody case may present include financial records, expert testimony, personal testimony, and other forms of character evidence. A Westchester divorce lawyer can help you gather and present evidence in light of these factors, maximizing your chances of having a favorable outcome to your custody dispute.

It is important to note that a custody order may be modified. In order to modify a custody order, a person must show a change in circumstances since the last order was made, and that that change creates a situation in which modifying the order will be in the child or children’s best interests. The Westchester divorce lawyers of Lynch Schwab, PLLC are dedicated to helping people having child custody disputes bring their cases to a favorable resolution. Call or email us today to schedule a consultation.

Posted on October 23, 2013 in For Our Clients, Divorce Attorneys