What Are the “Best Interests of the Child” in Determining Custody?



The issue of who gets custody of the children can be the most emotionally charged aspect of any divorce action. It can also be a contentious matter in family situations in which the parties were never married. Regardless of marital status, the guiding principal in determining custody of any child in New York is known as “the best interests of the child” standard.


The "Best Interests" Standard

First and foremost, “the best interests of the child” standard considers the health and safety of the child. In doing so, New York Courts will take into account a number of factors to determine which parent is best suited to care for the child’s physical, emotional, and mental well-being. The child’s needs and welfare are always paramount in a custody case and take precedence over either parent’s interests. While there are numerous factors for the court to consider in rendering its decision as to what is in the best interests of a child, the court will rarely consider only one. Typically, a court will balance the totality of all factors when making its determination.


Some Factors a Court May Consider

The “best interests of the child” are not set forth by statute, so there is no absolute definition that courts apply. Rather, each case is determined by an analysis of its own specific facts and circumstances, as every family situation varies widely. Many of the issues that can arise in custody matters have been addressed by New York case law. However, a court may choose to consider any factors it deems relevant and important to determine custody of the child. The gender of the parents is not a factor considered by the court, and both parents have as equal a right to custody as the other.


Just a few of the common factors considered when a New York court determines child custody include:

  • Which parent can provide a stable home life and make themselves available to care for the child?

  • Who has been the primary caretaker of the child?

  • What have the child care arrangements been?

  • Does either party use drugs or abuse alcohol?

  • What is the mental health of the parties?

  • What is the physical health of the parents?

  • Has either party abused their spouse or significant other in front of the child?

  • Is there a history of abuse or neglect?

  • Are there any conditions in the home environment that would affect a child physically, emotionally, or mentally?

  • Where do the child’s siblings live?

  • Has either parent interfered with the other’s parenting time?

  • Has either parent behaved poorly in court so as to reflect adversely on their fitness as a parent?

This list is not exhaustive, by any means. A court has the discretion to ignore any factors which may not be relevant, or apply any other factors which concern the child’s well-being.


The Wishes of the Child

In any child custody case, the child will be assigned an attorney who represents their interests. Part of this attorney’s duty is to convey the child’s wishes to the court. A court may choose to consider the child’s wishes when making its custody determination. While there is no set age at which a court will consider a child’s preferences, more weight is typically given to the wishes of an older child.


If you are facing a child custody issue in New York, it is best to contact an attorney immediately who can advise you of your legal rights. The Law Office of Jessica M. Semins provides compassionate counsel and aggressive representation for Family Law matters throughout the New York metro area. The Law Office of Jessica M. Semins is available to handle child custody disputes, Matrimonial and Family Law issues throughout New York City, including Manhattan, the Bronx, Brooklyn, Queens, and Staten Island; Long Island, including Nassau County and Suffolk County; and Westchester County. Call (646) 397-6844 today for a consultation.


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Attorney Advertising.  The content contained herein is not intended to be construed as legal advice, nor form an attorney-client relationship. (c) 2019 The Law Office of Jessica M. Semins, Jessica M. Semins, Esq.