The Interest of the Child is Paramount in New York Custody Cases

You care about your children and want only what is best for them. The law in New York requires the court to decide what is in the best interest of the child involved in any custody matter. Determining what is in the best interest is often tricky and very difficult, especially when the other parent does not agree with your view. The law has created standards to guide a judge in deciding what the best interest means, but we understand that every case is different.

When Does the Best Interest of the Child Standard Apply?

The best interest of the child standard applies to almost every situation involving children. The courts apply the best interest standard in divorce, family court custody cases, and modification proceedings. For example, in order to change a prior custody agreement, the parent must show the court a change in circumstances so that modification is required to protect the best interests of the child. The best interest standard applies to major life decisions as well, such as whether to send your child to public school or private school, where to vacation, what type of medical treatment your child receives, and whether your child should have a private tutor.

Simply put, when children are involved, everyone else involved looks at what they believe is in the child’s best interest. New York law sets forth certain guidelines that judges can look to when making a determination as to whether a given choice is in a child’s best interest.

Best Interest of the Child and the Law

Determining what is in a child’s best interest can be difficult, especially when two loving parents have wildly differing views on what that means. However, to guide judges in making thoughtful decisions on the lives of children, there are certain considerations set forth under the law, including:

(1) which alternative will best promote stability;

(2) the available home environments;

(3) the past performance of each parent;

(4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well being, and foster the child's relationship with the noncustodial parent;

(5) the quality of the home environment and the parental guidance the custodial parent provides for the child;

(6) the ability of each parent to provide for the child's emotional and intellectual development;

(7) the financial status and ability of each parent to provide for the child;

(8) the effect an award of custody to one parent might have on the child's relationship with the other parent; and

(9) the child's desires.

A Closer Examination of the Best Interest Factors

Skilled custody attorneys such as Daniel Szalkiewicz and Cali Madia are able to apply the best interest factors to your special case. Courts have elaborated on the best interest factors to expand upon them in different circumstances.

• Meaningful Contact Between the Parents

Custody does not mean alienation. One of the primary responsibilities of a custodial parent is to assure meaningful contact between the child and the other parent. If the court believes you are interfering with a parent’s right to speak with their child, then they may not be willing to award you custody. In almost all instances it is not in a parent’s best interest to block or screen incoming calls from the other parent, take away the child’s phone access for the purpose of interfering with the other parent’s ability to reach the child, or fail to cooperate with set visitation exchanges.

The court considers the existence of any alienation of affection or interference with the relationship between a parent and the child, including willful interference with his or her visitation rights, to be an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent.

• Emotional and Intellectual Development

Custody issues can be hard on children. The court looks to see which parent would provide the opportunity for the Child to separate, individuate, and grow into their own person. Over-parenting, helicoptering, and too much control can sometimes be viewed by the court as against the child’s best interest. This does not mean a parent allowing their 4-year-old to walk to school alone is a fit parent and will have custody. Placing a tracking device on a 16-year-old could be considered bad for their development and the court could frown on this conduct. Whenever a court become involves in the custodial arrangements of your child, be prepared to have your parenting choices - no matter how benign - placed under extreme scrutiny by your child’s other parent and the court.

• Preference of the Child

An attorney for the child will represent your child(ren) and speak to the court on his, her, or their behalf. Depending on your child’s age, their preference can play a strong part in the custody case. Courts have decided that if the child can give a can clearly express their opinion and preference, then they should have their desires considered. The court will not make your child testify in open court. Often, the judge will have your child speak in chambers out of the presence of the parents or their attorneys.

• Domestic Violence

Allegations of domestic violence and abuse can impact a court’s determination on what is in the best interest of the child. The court must listen to the incidents and then decide what effect the domestic violence has had on the child.

The Court is not Bound to the Best Interest of the Child Factors

Any court in considering questions of child custody must make every effort to determine what is in the best interest of the child, and what will best promote the child’s welfare and happiness. There are no absolutes in making these determinations and the factors are designed not to bind the courts, but to guide them in determining what is in the best interests of the child. In reaching its determination as to what is in a child’s best interest, the court is not limited by a finite set of determinative factors. The court is guided by principles that reflect a considered social judgment in this society respecting the family and parenthood. If your family has an issue which you feel is not properly illustrated or emphasized by the best interest factors, call our office. We can pull from our vast experience in this area of law, as well as existing case law, to determine how to best pursue your matter.

The Court’s Decision of the Best Interest of the Child is Binding

While a court’s order can be appealed, it is very difficult to overturn a custody order. The Appellate Division believes that best interest determinations depend, to a great extent, upon an assessment of the character and credibility of the parties and witnesses, and therefore, deference is accorded to the trial court. When making your case before the court, it is very important that the judge be provided with all of the evidence.

Outside Resources to Determine the Best Interest of the Child

Because the court’s decision is so important, there are outside resources to determine what is in the child’s best interest. We use technology and subpoenas to determine whether your spouse is harassing you or your child. The court will also appoint a forensic psychologist to meet with the parents, children, and other references in order to put a recommendation to the court as to who should have custody. Additionally, in certain limited instances, an attorney for the child can substitute their judgment for the desires of your child.