It is important to understand that when New York courts are managing child custody, the focus is on protecting the best interest of the child. As those with children know, there are no clear-cut guidelines for this which makes custody laws complicated, to say the least. 

Whether or not the child was conceived before or after the marriage is not of concern to the courts and does not play a role in where the child lives. New York State Courts look at child custody arrangements on a case-by-case basis. There are many aspects of custody that are taken into consideration when courts make decisions. If the parents are separated during the time of the divorce proceedings, the court will consider who the child has been living with during this time as changing custody could be jarring for the child. If a child has certain special needs that one parent is better equipped to manage the courts will consider that as well. Writing out every specific factor from any one hypothetical case would create an inexhaustible list. In general, the court will look at the following:

  • Who the primary caretaker was before, and during, the divorce proceedings
  • If there’s evidence a parent abuses alcohol or drugs
  • If a parent has untreated mental health issues or is emotionally unstable
  • The physical health of each parent
  • If there’s evidence of abuse, neglect, etc. either towards the child or one’s spouse
  • The financial situation of each parent

The preference of the child will be taken into consideration. The older they are, the more their opinion will be taken into account. The court will analyze why the child wants to live with them however, as a child wanting to live with a parent because they feed them junk food and allow them to skip school would not be considered valid reasoning. If a child is clearly thriving living with one particular parent during the divorce proceeding, the courts will be less inclined to change the arrangement. Usually, no one factor is used in determining which spouse gains custody. 

An unfit parent can be basically described as one that puts their child at risk or is negligent in some way. Whether socially, physically, academically, or otherwise. Consideration is given to how responsive a parent is to their child’s needs and the limits the parent sets for the child. A judge can require, an attorney can recommend, or a parent can decide to bring in a child custody evaluator, who will evaluate the dynamic and will give their opinion on what living situation would be in the child’s best interest. Their opinion is not the final decision, merely a suggestion based on their expertise.