The Child's Preference in Custody Determinations
"While the preference of a child of sufficient age and understanding is a factor in any custody determination, it alone is not controlling," writes Joel R. Brandes.
September 13, 2024 at 04:33 PM
11 minute read
Family LawA court considering parents conflicting claims to custody and visitation with their child must make its determination based upon what is in "the best interests of the child." (DRL Sections 70; 240). In determining the best interests of the children, the court must evaluate the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171–174, 451 N.Y.S.2d 658). Among the factors to be considered in making a best interests determination are the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent. The court must also consider the stability and continuity afforded by maintaining the present arrangement. (Lieberman v Lieberman, 42 A.D.3d 1144, 38 N.Y.S.3d 81 (2 Dept., 2016)). The best interests rule escapes precise definition but has been explained in a series of Court of Appeals decisions dating back to the 1970's.
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