How does child custody work in New York divorces?

Jennifer Paulino

New York managing attorney at Marble Law

Published September 21, 2024 · 3 min read

Key Takeaways

Custody in New York is based on the best interest of the child.
Courts consider a number of factors when determining what constitutes best interest.

In New York, custody decisions are made based on the best interests of the child, without regard to either parent’s gender.

New York courts consider a series of factors when deciding child custody matters. In every case, the biggest factor is the best interest of the child. Therefore, courts frequently consider factors such as:

The child’s relationship with each parent
The physical and emotional well-being of each parent
Past involvement of each parent in the child’s life
The ability of each parent to provide a safe and stable environment for the child
Whether there is any history of domestic violence or substance abuse on the part of either parent
The work schedules and childcare arrangements available to each parent
The preferences of the child, depending on their age and maturity level
Witness statements or affidavits from individuals who may attest to the positive relationship between the parent and their child
Financial statements that confirm the parent’s ability to adequately provide for their child
Reports from mental health professionals, child psychologists or other experts who may recommend and testify to the benefits of 50/50 custody

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Even though there's no presumption explicitly stated in NY law that joint custody is in the best interest of the child, it is often adopted by courts as a starting point that then needs to be rebutted

Physical vs. legal custody

There are two types of custody in New York: physical and legal.

Physical custody refers to the physical care and supervision of a child and frequently refers to where the child resides. A parent with physical custody of their child is typically responsible for providing day-to-day care.
Legal custody refers to a parent’s authority to make important decisions regarding the child’s upbringing. The decision-making authority over the child includes healthcare, education, religious upbringing and general well-being.