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). Best interest of the child factors are not contained in any statute, but are established through case law. These factors include:
(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.
Most people are not aware that there are different types of custody in New York State. This is hard to understand especially for foreign citizens because custody laws in different parts of the world vary so much and some countries do not distinguish between different types of custody. In New York, there are two types of custody.
(1) physical (or residential) custody – where the child lives with primarily; and
(2) legal custody – decision-making over four spheres of influence of major decisions, namely (a) non-emergency medical decisions, (b) education, (c) religion and (d) extra-curricular activities.
When one parent is granted physical custody, the other parent will have visitation rights. For physical custody, the child can live solely with the mother, solely to the father, or the child can live a true 50/50 split with overnights and waking hours (e.g., one week with one parent and then one week with the other parent or a “nesting” situation where the child stays in one place and the parents rotate in and out in equal time periods). This last option is referred to as “joint physical custody”).
Legal custody refers to the parent or parents that have decision-making authority over “major decisions” regarding the child, such as non-emergency medical, religion, education, and extracurricular activities. When you think of the phrase “legal custody”, replace it with the phrase “decision-making” (e.g., sole decision-making or joint decision-making). Please note that “day-to-day” decisions are made with the parent who has parenting time during that period (e.g., when to brush teeth, when to do homework, when to go to sleep, what clothes to wear, etc.).