Child Custody Series - The Best Interests of the Child Standard

Child Custody Series - The Best Interests of the Child Standard

by Jane Stack and Nancy D. Kellman | Sep 23, 2021 |

Child Custody and Child Standard displayed via a dad and a child playing

Courts apportion custody of minor children between divorcing parents based on one standard: the “Best Interests of the Child.”  The most difficult aspect of divorce is ascertaining the best interests of the minor child(ren) involved; understanding and accepting that this might diverge from the best interests of parents, or might be inextricably linked to the best interests of parents.  A custody award is not a prize to one winning parent, nor is its denial in whole or in part a punishment to one losing parent.  Rather, a custody arrangement it a redesign of family logistics to match and support that family’s changing shape.  It is the responsibility of counsel to educate and advocate for the client.  It is the job of the court to make an award of custody based on the best interests of the child.

  1. How do courts use the “Best Interests of the Child” standard?

The “Best Interests of the Child” standard is the courts’ beacon for determining which parent(s) should have legal and physical custody of their children.  New York Domestic Relations Law (“DRL”) Section 70(a) sets forth the standard: “the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award [of custody] accordingly”: and courts have, over time, consistently invoked certain factors to determine “what will promote [a child’s] welfare and happiness.”  However, courts have also been careful to reaffirm that “in light of our guiding principle – the best interest of the child – there can be no absolutes in child custody cases.”[1]  The analysis is so fact-specific that child custody awards are difficult to predict except in most cases.

  1. Legal Custody Versus Physical Custody

The Best Interests of the Child standard guides the determination of both legal and physical custody.  Legal custody empowers a parent to make decisions for his or her child.  Physical custody empowers a parent to physically live with his or her child.  This article focuses primarily on physical custody.  The responsibility to make major decisions for a child is often shared by parents, who are required (or agree) to consult with one another.  In events where parents sharing legal custody cannot agree on a major decision, the parent with primary physical custody usually has final decision-making authority.  However, other arrangements are possible.[2]

  1. Joint Custody Versus Sole Custody

The first question a court must ask is whether awarding sole custody to one parent, or joint custody to be shared by parents, is in the subject child’s best interests.  The court’s guiding principle should be, and theoretically is, that:

Joint custody is appropriate between relatively stable, amicable parents who behave in a mature and civilized fashion.  Joint custody is inappropriate where [] the parties are antagonistic toward each other and have demonstrated an inability to cooperate on matters concerning their children.[3]


Subsequent articles in this Child Custody Series will explore the reality of joint versus sole custody outcomes in more detail.  The topic is complicated by a dichotomy between settled law that courts should not “impose[ joint custody] on parents who do not communicate, who are unwilling to cooperate, and who are unwilling or unable to set aside their personal differences and work together for the good of the children”[4] and the reality that most mediators, counsel and court-appointed referees (assistant employees of the judge) encourage parents to agree to joint custody frameworks.[5]

  1. When is sole custody most appropriate?

If parents cannot work together in their child’s best interests, one of them should theoretically be granted sole custody (although the other can have liberal visitation and access rights, also to be explored in subsequent articles, or parties can be joint custodians in title only).  This is the case even when “both parties are good and loving parents.”[6]  Neither mother nor father has a prima facie right (is presumptively entitled to) custody, and the “primary focus must be upon which of the parents is in a better position to provide for the child’s emotional and intellectual development, the quality of the home environment and the parental guidance to be provided.”[7]  To make such a determination, the court will consider the non-exhaustive list of factors listed below, infra Section e.

  1. When is joint custody most appropriate?

If parents can work together in their child’s best interests, and shared custody is in their child’s best interests upon the court’s consideration of the factors listed below, a court will award joint custody.  Joint custody can, but does not necessarily, mean 50/50 custody.  The proportion of custody awarded to each parent also depends on the below factors.

The court and all parties and counsel involved must, essentially, maintain focus on ascertaining the best interests of the child, understanding and internalizing that “[j]oint custody is not meant to be a door stop to keep one’s foot in the door of decision making and parental stature.  It is meant to enable two parents to work together to make joint decisions in the best interests of their children.”[8]  Only parents who can work together, therefore, should be asked to share custody.  However, as mentioned above, custody awards do not always reflect this principle.

  1. Factors Illuminating the “Best Interests of the Child”

Courts use the following factors, among others, to determine what custodial arrangement is in the Best Interests of the Child:

  • Continuity/Stability
  • Historically primary caregiver/custodian
  • Attunement to the child’s needs
  • Hesitancy to impose undue burdens on children
  • Willingness to foster the child’s relationship with the other parent
  • Recommendations of court-appointed, neutral experts
  • Child’s wishes
  • Keeping siblings together
  • Financial positions of parents
  • Physical and mental health of parents
  • Lifestyle of parents
  • Domestic abuse
  1. Synthesizing the Factors

Ultimately, a court will look to the “totality of the circumstances” uniquely present in a custody case, guided by (but not limited to) the above factors, to design a custody arrangement that will serve the best interests of the subject child(ren).  Where a forensic custody evaluation has been ordered, the results of this evaluation and recommendation of the neutral mental health provider who performs it will play a central, often defining role in a custody determination.

Our next posts will explore:

  • Determination of joint versus sole custody;
  • The vital importance, to a child’s best interests, of supporting parents;
  • The forensic custody evaluation process;
  • The difference between physical custody and access rights;
  • The standard for modifying existing custody agreements;
  • Barriers to relocating with a minor child subject to a custody agreement;
  • How child support payments increase or decrease based on custody;
  • Typical custody arrangements; and
  • Admissible evidence to establish the best interests of the child.

For additional reading on this topic, see:


[1] S.L. v. J.R., 27 N.Y.3d 558, 563 (N.Y. 2016).

[2] Final decision-making authority can also rest with a parenting coordinator or subject-matter expert (e.g., parties could agree that the parent whose opinion aligns with the child’s pediatrician in the context of a major medical decision will have final say on that matter; the parent whose opinion aligns with the child’s teacher in the context of a major educational decision will have final say on that matte, etcetera.)

[3] G.D. v. D.D., 2016 N.Y. Slip Op. at *21 (Sup. Ct. Westchester Cty. 2016). (internal citations omitted)

[4] G.D. v. D.D., 2016 N.Y. Slip Op. at *24 (internal citations omitted); Cusano v. Coitino, 63 N.Y.S.3d 526, 527 (2d Dept. 2017) (“the parties’ inability to effectively communicate made joint custody untenable.”).

[5] E.g., Caulley at 427 (“joint custody arrangements are becoming the preferred type of arrangement.”).

[6] E.g., G.D. v. D.D., 2016 N.Y. Slip Op. at *23.

[7] G.D. v. D.D., 2016 N.Y. Slip Op. at *23 citing Matter of Louise E.S. v. W. Stephens S., 64 NY2d 946 (1985); DRL Section 70(a).

[8] G.D. v. D.D., 2016 N.Y. Slip Op. at *22.