One of the most challenging elements to a divorce is the question of child custody arrangements. It is always best for parents to put a child’s needs first when agreeing on custody. Some divorcing parents, however, may not be able to reach an agreement and will have to turn to the courts for a custody decision.
In child custody decisions, New York state law requires courts to take account of the individual facts of each case, the circumstances of each party, and the best interests of the child. Judges in New York aren’t limited by a list of specific factors, but instead have broad discretion to consider all of the relevant circumstances of the case. Examples could include the following: the overall health of each parent, the child’s relationships with other family members, each parent’s ability to care for and provide for the child, and whether the parents can cooperate with each other as coparents.
In New York, a custody decision may be modified if there is clear and convincing evidence that a change is in the best interests of the child. Before the court makes a new decision, however, it will review all of the previous decisions and reports regarding custody.
Courts will always consider allegations of child or domestic abuse in making child custody decisions. New York law directs courts to examine any allegations of abuse of children or other members of the household. To minimize the chances of false accusations, an allegation of abuse by either parent must be made upon a sworn oath. In considering whether the allegations are true, the court will use a legal standard of proof called a “preponderance of the evidence,” which simply requires that the court determine that it’s more likely than not that the allegations are true—if only by a fraction.
A parent who makes allegations of abuse against the other parent in “good faith,” meaning on the basis of a reasonable belief supported by facts, will not be penalized in a custody decision if the allegations later prove to be incorrect.
A parent who abused a child or family member may still be awarded some form of custody or visitation, so long as the abuse was an isolated incident or there are other factors that indicate that it would be beneficial for the child to maintain contact with that parent. A history of consistent abusive behavior, however, is clearly harmful to a child and custody will probably be denied to a caregiver who has displayed a pattern of harming others. A parent who has been abusive may be allowed to have supervised visitation with the child.
Since New York judges have such broad discretion to decide custody matters, it is best for divorcing parents to agree on a sensible custody arrangement that puts the child’s interests first. If parents cannot agree, the judge will look at all relevant factors to make the decision.