IN CUSTODY DISPUTES, HOW DOES COURT DETERMINE "BEST INTERESTS" OF THE CHILD?

By Sari M. Friedman, General Counsel
Fathers Roghts Association, LI and NYS

It is pretty much common knowledge that the standard for deciding which parent is to be given custody of the child (or children) is based on what is in the best interests of the child. But how can the court determine that? Usually, by taking one or more factors into consideration.

A Child's Preference

In New York, once the child reaches the age of eighteen, that child is no longer subject to an order of custody. There are some courts that would hesitate to influence the choice of a sixteen or seventeen year old unless the child has some serious problems and his or her choice is not deemed reasonable by the court.

Preferences of a young child will not receive the same level of weight based on the theory that a young child cannot properly assess what is in his or her best interests. Nevertheless, the choice made by a young child can be very telling. It strongly suggests with which parent the child has more closely bonded, and it may also show which parent the child sees as more nurturing. These factors are indeed relevant in determining custody.

Other Factors

Status Quo - What has each parent expressed by past conduct to be their wishes? For example, if parents have been living separate and apart and they have developed a pattern of where the kids live and with which parent, the court might be inclined to continue that arrangement or something close to it.

Siblings - Usually, the court prefers to keep siblings together. Nevertheless, sometimes the needs of children differ and, in such an instance, the court could split them between parents.

Stability of Environment - The court prefers to keep children in the same neighborhood, the same school, close to the same friends. Thus, if one parent wants to move out of the neighborhood and that would require the children to change schools, that is a factor for court consideration.

Wealth of the Parent - Is the quality of the house suitable for the children? Is there suitable space for them? The court would also be concerned with the cleanliness of the house, the safeness of the neighborhood, the quality of neighborhood health care, access to religious institution, etc.

Parental Stability - Is the preferred custodial parent stable? Does the parent have a history of mental illness, drug or alcohol addiction, a criminal history or a history of promiscuity, homosexuality or other sexual deviants? Does the parent have a history of violence toward self or toward child?

Summary

In brief, the court is most concerned with the stability and judgment of the parents, as well as the quality of the relationship between parent and child. How does the child get along with each parent? Frequently the age and sex of the child can affect choice. For example, older boys may tend to be closer to their fathers and may very well prefer to live with the father regardless of other negative or positive factors. And finally, who else lives in the house? Are there step siblings, a step parent? What is the quality of relationship with these people?

Perhaps above all, the court would encourage parents to promote a two parent relationship. That means no bad mouthing of the other parent. No denials of visitation. Remember, two people are divorcing each other. No one is divorcing his or her children.