How Is Custody Actually Determined In New York?
Assuming for a moment that the parties have not reached an agreement, then the court must determine custody. The basic rules that we have in this state are very fact-sensitive. They are not hard and fast, as you will see. The first rule is that neither parent has a greater right than the other in regards to the custody of a child. That’s a bedrock law in this state. The second rule is that when a court makes the decision, the court is making a decision based upon the best interest of the child. The court is trying to achieve through its custodial determination what it believes to be the best interest of the child. Of course, that’s where the rub is because people have a very different view about what is in the best interest of the child.
In trying to decide how to present a custody case, the courts tell us that the only absolute in the law governing custody of children is that there are no absolutes. That is not at all that helpful when one answers the question that you posed.
Nonetheless, the appellate courts have set forth factors that they tend to consider when they determine the custody dispute. One should be very careful here. These factors are not exhaustive, but we see courts refer to these factors frequently.
I’m going to quote the factors that are frequently considered by the appellate courts. These factors are:
- “The parent’s ability to provide a stable home environment for the child.”
- “The child’s wishes.”
- “The parent’s past performance.”
- The “relative fitness of the parents.”
- “An ability to guide and provide for the child’s overall well-being.”
- “The willingness of each parent to foster a relationship with the other parent.”
These factors are merely a guide. When one presents his or her case for custody, one should keep these factors in mind to emphasize facts that show how he or she better establishes each of these factors than the adversary.
When Can A Child Decide Who He Or She Will Live With?
In New York, the court retains jurisdiction to decide the custody of a child until the child’s 18th birthday. So if I’m going to answer your question technically correctly, on his or her 18th birthday a child can decide who they want to live with and there’s nothing a court can do about it. Yet the case law makes the child’s wishes a factor that the court will consider in its custody determination. As children get older, the courts tend to give greater weight to the child’s expressed wishes. In one case, the court wrote that the wishes of the child are not controlling, but are entitled to great weight when the child’s age and maturity would make the child’s input particularly meaningful.
Another court phrased the same thought slightly differently, saying that although not determinative, the expressed wishes of the child are some indication of what is in the best interest, considering their age, maturity and potential to be influenced. The courts are obviously very concerned that a parent may be influencing children, and that the expressed wishes of the child are not genuinely what the child wishes, but rather what they feel they must say because of the influence. The case law is loaded with cases in which the court has disagreed with the child and imposed on the child a custodial arrangement different than what he or she wished. If a child is young and the court agrees with his or her wishes, the ruling is usually because there are other factors that point in that same direction.
Courts will consider a child’s wishes depending upon the age and maturity of the child. Ultimately, the decision is made on a case-by-case basis. I cannot recall a case in which the child’s wish alone was the reason for the court to rule in a particular way on the custodial question. But I can recall many when the child’s wishes was a factor.
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