New York law does not create a presumption in favor of either mothers or fathers in custody matters. The overriding consideration of the Court in any child custody matter is the best interests of the particular child(ren) in each case.  Results will vary on a case by case basis.  However, the general principles examined by the Court are the same.  The factors considered by the Court include:

1.  Who has been the primary custodial parent in the past;

2.  The financial resources of the parents;

3.  The presence of siblings in the home;

4.  Which parent will most likely foster an ongoing and positive relationship with the other parent.

The child’s wishes will not determine the outcome of the case, and parents involved in custody disputes should keep in mind that children often make conflicting statements to each parent, due to a desire to please both parents.

Parents involved in custody litigation often get caught up in the terminology of child custody, which can be confusing, and frequently doesn’t reflect more current forms of child arrangements.  The term “custody” refers both to decision-making regarding the child and where the child lives.  When parents have “joint legal custody”, they make major decisions regarding the child together.  When a parent has “sole custody” he or she makes the major decisions regarding the child.  However, often the other parent has a right to be consulted before decisions are made.

Some Courts also Order a “spheres of decision making” arrangement, whereby final decision making authority over certain issues is split up between the parents.  For example, if the mother is a doctor and the father is a teacher, the Court may give the mother final decision making authority regarding the child’s medical treatment and the father final decision making authority regarding the child’s education.

The child’s physical custodian is the parent with whom the child primarily resides.  The other parent has “visitation”.  Schedules of visitation can vary greatly, depending upon the circumstances of the case. More and more cases are moving toward parents have near equal time with their children.  Courts favor children having as much exposure to each parent as possible.  It is very rare that a parent will have no access to his or her child.

Thinking in terms of “decision making” and “parenting time” helps to clear up some of the confusion, and moves parents toward a framework focused on joint responsibilities and split time with the child(ren).  More practitioners, including myself, are using these more current terms in settlement agreements.