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Last Updated: September 2025
Child custody is often one of the most acrimonious issues in a divorce. Deciding which parent will have custody can lead to lingering bitterness between the parents. To reduce disputes, courts follow specific guidelines when deciding custody.
A child’s preference may be considered, but it is never dispositive. Judges look at the totality of circumstances to decide what is in the best interests of the child.
What Is the Basis for Custody Decisions?
In the past, New York Family Court judges often relied on the gender of the parents, presuming children were best off with their mothers. Over time, this presumption was rejected as discriminatory and unfounded.
Today, custody is divided into two categories:
- Legal custody – the right to make important decisions about the child’s welfare, such as education, medical care, and religious upbringing. Courts often favor joint legal custody when feasible.
- Physical custody – the child’s primary residence. While joint physical custody is possible, it is not always practical. Children benefit from stability, especially staying in the same school district when possible.
Most custody battles focus on physical custody, as parents often live in different communities or even different states.
What Factors Do Courts Consider in Custody Cases?
New York courts evaluate many factors to protect the child’s best interests. These include:
- Domestic violence – any history of abuse by either parent.
- Mental and physical health – including substance abuse issues that impact parenting.
- Child’s residence and schooling – continuity in home and school district.
- Parental involvement – which parent has spent more time with the child.
- Parenting skills – ability to meet the child’s physical and emotional needs.
- Work schedules – each parent’s availability to care for the child.
- Home environment – judges may order child welfare to inspect for safety and stability.
Does a Child’s Preference Decide Custody?
No. A child’s preference is one factor among many but not controlling. Judges give more weight to the opinions of older, more mature children and less to those of younger children who may be more impressionable.
Legal vs. Practical Impact of a Child’s Wishes
- Legal: Custody decisions cannot be based solely on the child’s wishes.
- Practical: Judges may allow an older, mature child’s preference to influence the outcome when it aligns with other evidence.
How Does Involving a Child Affect Them Emotionally?
Courts recognize that custody battles can be emotionally damaging to children. Heavy involvement can cause:
- Stress and anxiety
- Emotional harm
- Feelings of guilt or being forced to choose sides
For this reason, judges may limit how much children participate directly in proceedings.
Do Custody Laws Differ by State?
Yes. Each state has its own approach:
Other states, like New York, leave it to the judge’s discretion, focusing more on maturity than age.
Some states set an age (such as 12, 13, or 14) when a child’s preference is given greater weight.
The judge’s goal is to determine which parent will be better able to provide for the best interests of the child, based on a totality of the particular circumstances in the case. This may include the preference of the children, but it is not guaranteed.
If You Are Involved in a Custody Battle, You Better Call Saul!
Custody disputes can become very bitter, especially if you and your ex have gone through or are still going through a difficult divorce. Our child custody attorney at The Saul Law Firm, LLP, will help you fight for your children, whether you are involved in a battle for legal custody, physical custody, or both.