The Child's Best Interests in Custody Cases

The standard applied in all custody disputes is what is in the “best interests of the child.” 

The applicable law is DRL Sec. 240 (1)(a):

“In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by petition and order to show cause, the custody of or right to visitation with any child of a marriage, the court shall require verification of the status of any child of the marriage with respect to such child’s custody and support, including any prior orders, and shall enter orders for custody and support as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child and subject to the provisions of subdivision one-c of this section….”

A determination of what's best for any particular child requires a case-by-case examination of both the needs of the child and the advantages presented by each parent. Factors Courts Consider in making custody decisions based on the best interests of a child, courts look to various factors.  

Factors for Parents

The factors courts look at when it comes to the parents include:

• Which parent is the most suitable custodian based on character, temperament and stability?
• What's the child's relationship with each parent?
• What child-rearing skills does each possess?
•  The physical and mental health of each parent
  
• Which parent will provide the best home environment and parental guidance?
• The financial status and stability of each parent to provide for the child
• The preference of the child
• Does the child have special needs that can be better met by one parent over the other?
  
• With whom has the child been living on a regular basis?
  

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• Prior or present custody arrangements or orders and the length of time same has been in place. 
• Will the child be separated from a half-sibling?
• What's each parent's apparent motive for seeking custody?
  
• Drug use or alcohol abuse of either parent.
• Domestic abuse of the child or the other parent.
• Which parent is the most likely to allow the child a meaningful relationship with the other parent?  (Parental Alienation)
• The ability and interest of each parent to provide for the emotional, social, moral, material and intellectual needs of the child.

These factors are not exclusive. A court may also look at where each parent lives, the local school system or a parent's other relationships. These factors are not all given the same weight in each case.  The court looks at these factors individually and together in reaching a decision.           

A parent seeking custody can't just look at all the factors, put a check mark in each column where it weighs more in favor of one than the other and then total up the scores. Judges give different weight to each factor in each case, depending on the circumstances of the family and the needs of the child.

Non-Factors in the Decision

• A parent's sexual orientation.
  
• Relative income of the parties should not, in and of itself, be a factor.  (Theoretically, child support should make this a non-factor.)
• Sex and age of the child.  The law is gender-neutral.  There is no presumption that a father cannot care for his daughter; or that a mother cannot properly raise a young boy.

The Law Office of Ralph Duthely - 153-01 Jamaica Ave., Suite 201, Jamaica,NY 11432 - (718) 725-0319 or (718)380-1602