Who Gets the Kids?


In New York, the primary concern for the court in awarding child custody is the “best interest of the child.” The best interest of the child test determines the ability of each parent to fulfill the needs of the child or children.

The test involves a serious of factors. It is rare that one factor on its own will decide custody. Rather, courts will make a decision based on the totality of the factors.

The following are the important factors that determine the child’s best interest:

  • Primary caretaker. Priority is often given to the parent who was considered the “primary caretaker” – which is the person who takes care of the child the most, such as take them to school, prepare food for them, etc. – of the child prior to the divorce or separation.
  • Child care arrangements. In most cases, both parents have to work, and priority may be awarded to the parent with the better child care arrangements.
  • Mental health of the parents. Untreated emotional instability, mental illness, personality disorders, and/or poor parenting can affect who gets custody.
  • Physical health of the parents. Severe physical disability or illness which affects one parent’s ability to care for the child may affect a custody award.
  • Drugs and alcohol. Drug and alcohol misuse can affect child custody award.
  • Spousal abuse. Evidence that one parent has committed domestic violence against the other, especially in the presence of the child, will affect who gets custody. The parent who committed such acts against the other will less likely obtain custody.
  • Abuse, abandonment, and neglect. The parent who commits such acts against the child is less like to receive custody.
  • Conditions at home. Courts do not want to place a child in a hazardous or unsanitary household.
  • Financial stability of each parent. Courts consider which parent can provide financially for the child, such as housing.
  • Educational opportunities. If one parent offers the child a better educational opportunity, such as a prestigious school or a school which meets the child’s special needs, then this may affect custody.
  • Court observations of the parents. Courts will consider the behavior and actions of each parent in court and will reward custody to the parent who will encourage the child to develop a relationship with the other parent.
  • Child’s preference. The closer the child is to turning 18 years of age, the more weight the court will give to the child’s wishes.

For more information, contact our Bronx divorce attorneys at Empire Law and request a free consultation today.

Share To: