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Legal Information: New York


November 9, 2020

How will a judge make a decision about custody?

A judge will make a decision about custody based on what s/he thinks is in your child’s best interest. The judge will consider any factor that s/he thinks is important to make this decision.

According to New York law, when determining what is in the best interest of the child, proof of domestic violence is a factor that the judge must consider.1 Other things that the judge will probably look at include:

  • who has been the child’s primary caretaker;
  • the quality of each parent’s home environment;
  • how “fit” the judge thinks each parent is (taking into account any mental illness that the parent may suffer from);
  • which parent the child is living with now and how long that arrangement has been in place;
  • each parent’s ability to provide emotional and intellectual support for your child;
  • which parent your child wants to live with, if s/he is old enough to make an informed decision;
  • whether your child would be separated from any siblings; and
  • whether either parent has been abusive to the child.2

The NY Courts website discusses additional factors that may be considered by a judge.

1 NY Dom Rel Law § 240(1)(a)
2 See, for example, Storch v. Storch, 725 N.Y.S.2d 399 (3rd Dept 2001); Church v. Church, 656 N.Y.S.2d 416 (3rd Dept 1997)