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There are two types of custody in New York – physical custody and legal custody.  Physical custody is just as it sounds – it lies in the parent with which the child lives.  Legal custody has to do with the rights to make significant decisions for the child.  Both physical and legal custody may each be put in a single parent, or may be shared among parents. 

When determining the best interest of the child, the Court examines the parental abilities to care for the child.  The considerations the court may weigh are the following:

  • Abuse and Interference.  It is obvious that evidence of mistreatment or abuse will affect custody.  However, evidence that a parent has attempted to alienate the other parent, or interfere with visitation rights, will likely also affect custody 

  • Stability:  This factor will focus on facts such as which parent is the primary caretaker, or if a parent is absent for some time while the other is the primary caretaker.  Financial health may be a factor which is considered with regard to stability

  • Child’s preference. The older a child is, the more weight is given to a child’s preference to live with one or the other parent.  However, a court may find that the child’s preference is not in the child’s best interest.  

  • Primary Caretaker: The parent who shoulders the majority of the care responsibilities may be given preference 

  • Substance Abuse. A parent’s substance abuse issue may affect custody;

  • Physical and mental health. Physical illnesses or mental health conditions that affect the ability of one parent to care of the child may affect custody 

  • Court Impressions. The Court will watch the parents in Court, and consider their conduct in making a custody decision

  • Spousal abuse. Domestic violence will likely affect the award of custody


This list is not exhaustive.  There are a nearly infinite field of considerations which a Court will weight in making custody decisions.  If you are involved in a custody dispute, or are concerned that you may be, schedule an initial consult today, or call us today to speak to an attorney.  

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