How Custody Is Decided in New York
Custody in New York is decided on one standard: the best interests of the child, considering the totality of the circumstances. Neither parent has a preference. The Court of Appeals said so in Friederwitzer v. Friederwitzer and Eschbach v. Eschbach in 1982 and every custody decision since then starts there. What follows is what that standard means in practice in the Suffolk and Nassau courts.
What are the different kinds of custody?
Legal custody is decision-making authority over the major issues in a child's life: education, medical care, and religion. It can be joint or sole. Joint legal custody means both parents must agree on major decisions. Courts do not impose joint legal custody on parents who cannot communicate, which is the rule from Braiman v. Braiman, and where the parents are in conflict, the court will often give one parent final decision-making authority, sometimes divided by subject so that one parent has the final say on medical questions and the other on education.
Residential or physical custody is where the child lives. One parent may be the primary residential parent with the other parent having parenting time, or the parents may share residential custody on a schedule that approaches equal time. Parenting time is the current term for what used to be called visitation.
A parenting plan sets out the regular schedule, the holiday and vacation schedule, transportation, communication between the child and the other parent, and how disputes will be resolved. A good plan is specific enough that it does not need interpretation on a Sunday night.
What does the judge look at?
The factors the courts weigh, drawn from Eschbach and the cases that follow it, include the following.
- The quality of each home environment and the parental guidance each parent provides.
- Each parent's ability to provide for the child's emotional and intellectual development.
- The stability of the child's current arrangement and the desirability of keeping it.
- Each parent's fitness, including any history of substance abuse, domestic violence, or mental health issues that affect parenting.
- Which parent has been the primary caretaker.
- Each parent's willingness to foster the child's relationship with the other parent.
- The child's wishes, given weight according to the child's age and maturity.
- Keeping siblings together.
- The financial ability of each parent to provide for the child, which is a factor but not a controlling one.
- Any other factor relevant to the particular child.
No single factor decides the case. A parent who interferes with the other parent's relationship with the child can lose custody on that basis alone, because the courts treat the willingness to foster the other relationship as evidence of fitness. In 2026, the Fourth Department affirmed an award of sole custody to a father based on what it called the mother's unrelenting campaign of alienation, and the First Department confirmed that suspending child support remains available in rare cases of severe alienation.
How does the child's voice get heard?
In a contested custody case, the court usually appoints an attorney for the child, who meets with the child, takes a position on the child's behalf, and participates in the trial. The judge may also interview the child in chambers with the attorney for the child present and without the parents, which is called a Lincoln hearing. The child's preference is a factor, and the older and more mature the child, the more weight it gets. In April 2025, the Second Department reversed a Suffolk County award of custody to a father who had moved to Florida and gave sole custody to the mother, in part because of the children's expressed preference and the disruption the move would have caused.
The court may also order a forensic evaluation by a psychologist or psychiatrist who interviews both parents and the child and issues a report to the court. Forensic reports are confidential, are never e-filed, and carry significant weight.
What is Kyra's Law and is it in effect?
Kyra's Law is a bill that would require a threshold safety hearing whenever there are credible allegations of domestic violence or child abuse before a custody or parenting time order is made. It passed both houses of the Legislature in June 2026 and was delivered to the Governor. As of September 2026, it has not been signed, and the Family Court Judges Association has opposed it. If it becomes law, it will take effect 270 days after signing. Until then, the existing law applies, under which domestic violence is a factor the court must consider under DRL 240(1)(a) where it is proven by a preponderance of the evidence.
How do I prepare?
This is the practical part. The court decides based on evidence, and the parent who can show rather than tell has the advantage. Here is what I ask clients to gather.
- A calendar. Who did what, on which days, for the last year: school drop-off and pickup, medical appointments, homework, activities, bedtime. Reconstruct it from your phone, your email, and the school portal if you did not keep one.
- School records. Attendance, report cards, teacher communications, and who is listed as the contact.
- Medical records. Who took the child to the pediatrician and the dentist, and who is listed on the forms.
- Communications with the other parent. Text messages and emails, exported in full, not screenshots of selected lines. Courts read these closely and they cut both ways. Write every message as if the judge will read it, because the judge may.
- Third parties. Teachers, coaches, neighbors, and relatives who have seen you parent. Their testimony or affidavits carry weight because they are not you.
- Evidence of your support for the other parent's relationship. Flexibility with the schedule, encouragement of contact, and the absence of disparaging comments in front of the child. This factor matters more than most parents expect.
- Your plan. Where the child will live, who will be there after school, how the child will get to activities, and how you propose the other parent stays involved. A concrete plan is persuasive.
And here is what I ask clients not to do. Do not involve the child in the litigation. Do not record the other parent without advice. Do not post about the case. Do not withhold the child from the other parent without a court order, no matter how justified it feels, because self-help is the fastest way to lose the case.
Emergency situations
Where a child is in danger, a parent can seek a temporary order of custody or an order of protection on an emergency basis in Family Court or in Supreme Court if a divorce is pending. These applications are heard quickly and require sworn evidence. If you believe your child is at risk, call before you act.
Call 516-928-5838 or use the contact form to schedule a free thirty-minute consultation.
Questions Clients Ask
-
Does the court require parenting classes?
A judge may refer both parents to a certified parent education program under the court rules, and Nassau judges commonly refer parents to the P.E.A.C.E. program. Attendance cannot be required of a parent who has been the victim of domestic violence. -
Can custody be changed later?
Yes, on a showing of a change in circumstances that makes modification in the child's best interests. A parent's move, a change in a child's needs, a new partner in the home, or the other parent's interference are common grounds. In 2025 the Second Department ordered a full hearing on a father's modification petition based on seven years of sobriety and evidence that the mother was alienating the children. -
At what age can my child choose?
There is no age. The child's preference is one factor, weighed according to maturity, and it is expressed through the attorney for the child or in a private interview with the judge, not in open court. -
Do mothers have an advantage?
No. The law gives neither parent a preference. The parent who has been the primary caretaker has an advantage because stability is a factor, and that parent is still more often the mother, but the courts award custody to fathers regularly where the evidence supports it.