Share on Facebook
Share on Twitter
Share on LinkedIn

As a Brooklyn, New York Custody Attorney I have taken numerous custody cases to trial both in Family Court and Supreme Court (in cases of Divorce).  The parent that wins the custody battle is the parent that can show to the Court that it would be in the best interests of the child to be with them.


In determining the best interests of the child the Court will look at the totality of circumstances. The person that wins at a custody trial is the one that presents the best evidence. It is important to know what criteria the Court uses to determine best interests. Here I will discuss this criteria.


First, the Family or Supreme Court will look at who can best give stability for the child. The evidence you can show  to prove stability varies.  


  • The Court will be interested with who the child has lived with predominately. Keeping a child in the home they are most used to is an important  consideration for the Court. 
  • Other questions that will be answered deal with schooling. Would changing where the child lives change where the child goes to school if they live with one parent? Maintaining the child in the school they are in may be seen as important because the child has developed important relationships with other students and teachers.
  • Another factor is how long would it take the child to get the school if they lived with one parent or the other. This is not an issue when a parent can get a school bus to pick up the child. If it takes the child 15 minutes to get to school with one parent and an hour an a half with the other, than the shorter distance may be important factor.  A parent can always argue that they would change the school of the child if the trip would be too long but would have to decide if it’s in the child’s best interests to change schools. 
  • The Court will also look at where the children’s friends and relatives are in relation to where they live. If moving the child will uproot the child’s familial and social circumstances making it hard for the child to maintain relationships, the Court may take this into consideration.


Second, the Court will look at the available home environments to the child. Factors that will be taken into consideration for this issue are:


  • Where child sleeps. The Court will at the sleeping arrangements of the child.  If one parent has the child sleeping in a room on a bed and the other parent has the child sleeping in a sleeping bag in the living room, this will be an important factor to consider.
  • Condition of the home.  If one parent’s home is disheveled, messy or unsanitary this will be considered. If a parent is a hoarder this is an important fact for the Court to know. 
  • Who lives in the home or what happens in the home. If one parent has a significant other that is abusive,  violent, drug addicted or mentally ill, this will be considered in assessing the home. 


You may wonder how you can get proof of the conditions of another parent’s home? One way is through the Court Ordered Investigation. This will be ordered in Family Court or Supreme Court and, in New York City, the Administration of Children’s Services will conduct the investigation.  They will visit both parents’ homes, assess its condition, describe its layout, look at the food available for the child and identify any safety issues. They will also interview the parents and other collaterals if necessary to get a picture of both homes.  It is important to have a good relationship with the Court Ordered Investigator because they will write a report on their findings and it is in your best interests to have them write a good report.    


Third, the past performance of each parent will be considered in a best interest determination. 


  • How child does in school. If the child has performed poorly while in the care of one parent, due to that parent’s inattention to the  child’s academic needs, this is an important factor. You will need to prove to the Court that if the child lived with you you would have systems in place to help the child achieve.  If while in your care your child has excelled in school, this is an important factor in your favor. 
  • Regular doctor appointments. A showing that one parent has neglected a child’s medical needs by not keeping up with required medical appointments can affect a custody determination.
  • Primary Caretaker.  The parent that has taken the child to the majority of his doctor and dental appointments, attended PTA meetings, set up extra curricular activities, taken care of the child when they are sick and in general plans or controls the day to day activities of the child is more likely to win in a custody battle.
  • Discipline. The way the parents discipline the child is an important consideration. The court frowns on corporal punishment and over the top yelling when dealing with the child. On the other hand, a parent that is overly permissive with a child may be found not acting in that child’s best interests. The parent that can best explain their philosophy surrounding discipline, those that have a plan will do best at trial.
  • Parental alienation. If you can provide proof that the other parent is coaching your child to say bad things about you or talking badly about you to the child in general you may get custody. To investigate parental alienation the Judge may interview the child themselves through what is called an in camera interview or a forensic psychologist maybe needed to uncover parental alienation. 


Fourth, the Court will consider each  parent’s relative fitness, including his or her ability to guide the child, provide for the child’s overall well being, and foster the child’s relationship with the noncustodial parent. 


  • Mental health status. Evidence of a mental illness that impacts one parent’s ability to safely parent a child is relevant factor in a best interests determination.  
  • Drug and alcohol use. If a parent uses drugs or alcohol abusively, especially around the child, or gets drunk or high while with the child will weigh heavily in a determination. 
  • Domestic violence. Evidence of domestic violence in the home while both parents lived together is a factor the New York Family or Supreme Court must take into consideration in a custody battle.
  • Education. If one parent is more educated than the other and can show that because of this disparity in education levels they can better parent the child this will be taken into consideration.
  • Interference with visitation rights. If one parent interferes with the visitation rights of the other parent the Court may hold that that parent is not fit to have custody because it is in the best interests of the child to have a relationship with the other parent. The parent that can show that they can best promote the relationship of the child and the other parent will have a leg up in the proceedings.
  • Judgment. The parent that can show they have used better judgment regarding the child will have the upper hand.  If the other parent makes bad decisions concerning the child, like letting him stay home for school, not taking him to the doctor when injured, letting the child stay up late at night etc., this will be frowned upon by the Court.
  • Insight. I can’t underplay how important parental insight is.  A parent that doesn’t learn from their mistakes when dealing with their child is doomed to repeat them.  It takes a certain level of insight to learn from one’s mistakes. A parent who never takes responsibility for their bad actions with the child will be deemed to have little insight. Everyone makes mistakes but learning from them is key. The parent most capable of doing this has an upper hand. 
  • Prior Abuse/Neglect. If you can show proof that one parent has abused or neglected the child then this is important. Abuse or neglect can take many forms. There is inadequate guardianship, educational or medical neglect, excessive corporal punishment or sexual abuse. Proof of this can sink the other parent’s hope of getting custody. A parent’s insight on the charges against them in a neglect or abuse proceeding and what they have done to make sure the behavior never occurs again is very important.  The best proof is a finding against one parent in an Article 10 abuse or neglect proceeding.


Fifth, the child’s desires is another important consideration in a custody battle. What the child wants however is not determinative, especially with young children because they are more capable of being coached and because of lack of judgment. An older child’s preference is very important. If your child is appointed a lawyer it is important that you establish a good relationship with that lawyer because that lawyer will give their opinion about who should have custody in Court. This is especially important in cases where the child is young and the lawyer for the child has to substitute their judgment for the child. If the child’s lawyer is not on your side you could very well lose your case. 


Sixthly the finances of each parent. The court may consider who can provide best financially for the child.  If, for example, one parent has trouble getting housing because of finances this will count against them. The financial disparity can be ameliorated by child support and when people are married spousal support or maintenance.


Lastly, the Court’s observations of the parents. Ultimately the Court will make a determination on custody based upon what they think about you, this is why they are called Judges. They Judge your behavior. In addition to the evidence presented they will look at your demeanor in court, your temperament and your credibility. It is needless to say, but often overlooked, but you need to be respectful to the Judge. A person that has outbursts in the Courtroom or disobeys the Court’s rules will be seen as having poor judgment, a factor that comes into play in a custody determination.


If you are in a custody battle in New York, it is best that you hire an experienced Family Law Attorney to represent you. I have twenty years of experience in family law and I am ready to fight for you. Give me a call at 718-864-2011 for a free phone consultation.