Child Custody Determination Laws

Child Custody Determination Laws govern all custody proceedings in New York, the main concern for the court in awarding custody is the “best interest of the child.”  In addition, the courts must consider a myriad of factors including the stability of the parents, issues of alienation, issues of domestic violence, relocation, drugs, and alcohol to name a few.

In order to determine custody, the court must set a parenting time schedule for the non-custodial parent and can impose limitations on either parent. For instance, the court can award custody to one parent but not allow that parent to remove the children’s residence beyond a certain radius. This is called a radius clause. A court can also put restrictions on the parties’ ability to travel with the child or children and can impose other such restrictions.

Custody Action Commenced

When a custody action is commenced, the court will usually appoint an attorney for the child or children whose sole responsibility in the action is to represent the children’s interests. That attorney is the only attorney permitted to speak to the children about the case and surrounding circumstances except for the Judge which usually happens at the end of a trial. This is called an in-camera interview or a Lincoln Hearing as discussed below.

At the end of the custody trial, the court will usually speak to the child or children in chambers outside of the presence of the parties and respective counsel. The attorney for the child will be the only attorney present during that in-camera interview. The attorney for the Petitioner and Respondent can submit questions for the court and the attorney for the child to consider asking the child during that in-camera interview. The court’s in-camera interview with the children is just one factor for the court to consider along with all the other relevant factors.

Before the judge decides the case, and after having heard all the evidence and closing statements from the attorneys, the attorney for the child or children will make a recommendation to the court, which is but another factor.

Consult An Attorney

When dealing with a divorce matter or a Family Court matter it is recommended to seek legal advice from an attorney of your own choosing to help you through the process. Your attorney’s initial primary function is to advise you as to what is in your best interests now as well as in the future. What a friend may tell you from his or her experience, or what happens in a television show, is not necessarily in your best interests. An experienced attorney with a strong legal background in matrimonial and family law, such as Phillip J. Jusino, is better able to help you.

Child Custody and Visitation Disputes

In New York, child custody and support are often the most disputed areas in divorce negotiations as they affect both emotions and money. Since the Court determines custody based on what it believes to be in the best interests of the children. This aspect can be the most complicated and controversial component of a divorce in New York. Sometimes children become a bartering tool and their well-being gets lost in the game of tug-of-war.

Child custody matters in New York affect children under the age of 18. When the parents disagree about issues of child custody, the New York Court will appoint an attorney for the child.  A Law Guardian will conduct an investigation and issue a recommendation regarding child custody and an appropriate visitation schedule. The recommendation is typically based on their interview with the child and the child’s wishes.

New York is not a 50/50 custody state.  This means there is no automatic presumption that custody will be a 50/50 split between the two parents. Should it be up to the court to determine custody, the court will weigh many factors in determining custody arrangements. Both legal custody and physical custody must be addressed. Legal custody refers to the power to make important life decisions about a child and how the child is raised. It is common for legal custody to be evenly split between the parents so that both have an equal say in the child’s upbringing. In some cases, however, one parent may have the last word on legal custody issues.

Child Custody Determination Factors

No one factor is determinative in making a child custody award. The New York courts must weigh and balance the “totality of the circumstances” in making any custody determination. Deciding what is in the child’s best interests.  The New York courts are required to consider many factors, such as:

  • The effect of separation of siblings
  • The child wishes and if they are old enough
  • Length of time the present custody arrangement has been in effect
  • Abduction or abandonment of the child
  • Defiance of legal process by one of the parents
  • Parental stability
  • How the care and affection showed to the child by the parents
  • Home atmosphere
  • Parent morality
  • Acedmenic well being
  • Custodial changes and the effects on the child
  • Parental financial standing
  • Parents’ past conduct

Visitation Laws

An order of custody is always subject to an order of visitation for the non-custodial parent. Courts often dictate a specific visitation schedule. Unless the court specifies terms and activities for the visitation, the custodial parent cannot interfere with the non-custodial parent’s visitation. When the custodial parent withholds visitation, he or she may be held in contempt of court. If this happens consistently, the court could decide to change custody.

Do you need legal representation concerning a divorce or Family Court matter? I invite you to contact my office to set up a free consultation by calling 631-588-3155. We have been handling divorce and Family Court matters for over 33 years here on Long Island.  Check out Phil Jusino’s book about divorce and family law titled Divorce: A Practical Guide.  The book can be purchased on

About the Author

Phillip Jusino