F. Custody

• Jurisdiction: New York

F. Custody

1. Presumptions

By statute, there is no presumptive right on the part of either parent for the custody of a child of the marriage if both parents are living.¹¹⁰ However, if one of the parents is deceased, then there is a presumptive right on the part of the surviving parent to custody of the child. Unlike the law of certain other jurisdictions, New York has no presumptive right that the parties share joint custody of a child. By decisional law, it has been determined that the court may not properly grant joint custody to "warring" parents.¹¹¹ The mere fact that custody is being litigated is an indication of the inability of the parents to agree and to make joint decisions with respect to the child.

2. Factors

The underlying and controlling factor in making any award of child custody is ultimately the best interests of the child after a consideration of all of the circumstances.¹¹² Each case is decided strictly upon its own facts, and generalizations often do not apply to a particular case. Domestic violence involving the parties, or either of them, is now a mandatory factor in determining custody and visitation.¹¹³ Among the other factors a court may consider are:

a. age of the child;

b. health and special needs of the child;

c. capability of each parent to provide for the care of the child;

d. history of the care provided by each parent for the child;

e. health and physical condition of each parent, including mental health and disabilities resulting from alcohol, drug abuse and other substances;

f. previous and contemplated home environments for the child;

g. educational needs of the child and the ability of each parent to fulfill them;

h. presence or absence of members of the "extended family" of the child;

i. interference with visitation or the relationship of the other parent with the child;

j. religious considerations;

k. preference of the child, depending upon the child's age;

l. any abuses by either parent with respect to the child;

m. effect of separating siblings;

n. party's intent as expressed in an agreement;

o. relative nurturing care ability of each parent;

p. length of time the child has resided with one of the parties (if the parties are separated);

q. domestic violence by a party or in a household;

r. maintaining stability in the child's life; and

s. the so-called "wild card" factor—any other factor that may have a bearing upon the best interests of the child.

The court will weigh all the above factors and any others it...