Nassau County Family Law Blog

Monday, June 27, 2016

Gaining Custody—What Are The “Best Interests Of The Child?”

According to the guidelines for determining custody, the “best interests of the child” will hold substantial weight.  There are particular factors that a New York court evaluates to make a final decision regarding which parent is best fit to care for the child, many of which relate to the health and security of the child. 

Some considerations include:  the length of residence with a parent and the child’s primary residence, whether a child has special, emotional, or intellectual needs that could be better handled by one of the parents, as opposed to the other, evidence of domestic violence, or parental alienation.  Other factors include the location of relatives and siblings, with the goal of keeping siblings in the same household, alcohol and drug abuse and the parents’ mental and physical health, work schedules, a strong bond with one of the parents, and even the child’s personal preference towards a parent.

The above list is not exclusive and no one factor is controlling—each is to be considered in the “totality of the circumstances.”  An attorney can predict your likelihood of being awarded custody based on an analysis of the factors and can advise you if it is best to settle or go to trial.  Moreover, child custody rights may be able to be litigated even if you are not legally married to your partner. 


An attorney can also advise you of the positive and negative aspects of each type of custody available in New York.  These include:  Sole, Joint, Legal, or Physical Custody.  In New York, joint custody is typically awarded.  Legal Custody has to do with the decision-making power of either parent regarding important issues relating to the child’s well-being.  This legal right is likely to include the ability to make decisions about healthcare and religious affiliation.  If both parents demonstrate a willingness to cooperate and ability to decide issues mutually, Joint Legal Custody may also be awarded. 

Based on the type of custody that you prefer, your attorney will draft a Custody Agreement, otherwise known as a Parenting Plan.  If you filed an action, you may have the option to settle your custody dispute separate and apart from the rest of the issues that are being litigated, such as visitation rights and the obligation of child support.  

Finally, a court will issue a Custody Order that is binding on both parties.  If one party is not abiding by the order, an attorney may help you enforce it by filing a petition in Family Court.  If you choose to go forward with the petition to modify custody or visitation after a final order is issued, however, you will need to demonstrate a “change in circumstances.”

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