Determinations of custody are based on the “best interest of the child.” See DRL § 70; DRL § 240; see Eschbach v. Eschbach, 56 N.Y.2d 167 (N.Y. 1982); see Welsh v. Lewis, 292 A.D.2d 536 (2nd Dept., 2002) (emphasis added). These factors include, inter alia:
(1) The parent who has been the primary caretaker;
(2) The age and health of the parties;
(2) The need for stability and continuity in the child’s life;
(3) The relative financial ability of each parent;
(4) The quality of home environment and the parental guidance each parent provides;
(5) The ability of each parent to provide for the child’s emotional and intellectual development;
(6) The relative fitness of each parent;
(7) The length of time the present custodial arrangement has been in effect; and
(8) The desires of the child.
These factors are established by case law in New York and are not contained in a specific rule of law. Courts are given broad deference with the interpretation of these factors. The court looks at the totality of the circumstances.
New York’s jurisdiction over child custody is codified in DRL § 76. Most commonly, jurisdiction is based on New York being the home state of the child. In other words, the child has resided (and has been domiciled) in New York for at least six (6) months before the commencement of a custody proceeding. See DRL § 76 (a). If New York does not have personal jurisdiction over the child, a court cannot make any determinations of custody.
Oftentimes, people say they want “custody” – “full custody” or “shared custody.” But the term “custody” is often misunderstood. In New York, there are two types:
(1) Physical (or residential) custody – who the child lives with primarily; and
(2) Legal custody – decision-making.
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