In New York, both parents have the right to legal and physical child custody when no court order exists. When either parent requests a court order, the judge will make a custody determination based on the child’s best interest.

If you are considering divorce or have a child with someone but are not married, learn more about how New York courts decide child custody.

Legal and physical custody

The state makes separate determinations for legal and physical custody. Legal custody is the parent’s right to make critical decisions about the child’s upbringing, such as choices about school and health care. Physical custody describes where the child lives most of the time. The court can award parents either sole or joint legal and physical custody. Parents may share physical custody or decide that one parent will have primary residential custody and the other will have visitation.

The best interest standard

As in most states, custody decisions on New York hinge on the child’s best interest. The judge will consider these factors:

  • Each parent’s ability to provide a stable household
  • How parents currently share child care duties
  • The physical and mental health of each parent
  • Whether either parent has a history of substance abuse, abandonment, abuse or domestic violence
  • Whether either parent has interfered with the other’s access to the child
  • Each parent’s financial situation
  • The child’s preference and the reasons for his or her preference
  • The child’s existing relationship with siblings and other family members

When you file a custody petition with your local court, you will either receive a hearing date or a referral to mediation. In either case, you and your attorney will have the opportunity to present evidence that supports your custody preference. When parties cannot reach an agreement with the help of a professional mediator, their case will go to litigation for the judge to make a final, legally binding custody determination.