Custody Considerations

Custody litigation is often fraught with emotion, and prolonged battles can be expensive and traumatic. Whether you’re halfway toward a parenting agreement or preparing for a court battle, understanding how judges approach these decisions can inform your next steps. 

Family law attorney Natalia Gourari says that New York courts follow one overarching principle in these cases: “Act in the best interest of the child.” That concept applies to both legal custody, which determines who makes major decisions about the child’s life, and physical custody, which outlines the parenting schedule and where and when the child resides.

Determining Legal Authority

Legal custody, or decision-making, typically covers four key areas: education, medical care (including mental health), religion and extracurricular activities. Sometimes, parents share this responsibility, meaning they’re expected to make those decisions together. But that depends on their ability to co-parent effectively.

“Judges are looking at how you’ve made decisions in the past and your ability to communicate with the other parent and take into account their positive contributions,” explains New York City-based family law attorney John Kornfeld. “Do you listen to professionals? Do you exercise sound judgment?”

Courts examine the child’s relationship with each parent. “They look at the parents’ ability to care for the child, the attachment that was formed and who was the primary caregiver,” says Gourari. These details help judges assess who has handled daily responsibilities and which environment may offer more stability, especially for younger children or those with special needs.

If shared legal custody isn’t practical, judges may divide responsibilities by category. For example, they may assign one parent authority over education and the other over medical care.

They may also give one parent decision-making authority in all four areas, with the expectation that they engage in “meaningful communication” with the other. That means the decision-making parent must make a genuine effort to discuss the issue with the other parent and consider their input and perspective, explains Kornfeld. Still, the designated parent has the final say. 

Some families, either by court order or mutual agreement, bring in parenting coordinators—neutral professionals like social workers, child psychologists and former judges experienced in child custody situations—to navigate co-parenting disagreements and keep communication on track. “Although these professionals don’t have legal authority to make binding decisions, often they can bind the parties on an interim basis subject later to court order,” says Kornfield.

In all events, they can mediate recurring disputes and support parents in finding workable solutions without returning to court.

Parenting Time 

Physical custody, or parenting time, determines where a child spends their days and nights. “There’s been a shift toward equal parenting time when possible,” says Gourari. “But courts still look at each parent’s work schedule, the child’s age and whether a parent can meet the needs of the child.”

Older children sometimes have a say in where they live, but there’s no fixed age when their preference automatically determines the outcome. Courts will weigh a child’s input alongside other factors, giving more credence to those preferences as the child matures. Logistics matter too: how often the child transitions between homes and how far apart the parents live. 

Parenting time schedules vary widely, and even small differences can become costly. Under New York law, the parent with less than 50% of parenting time pays child support. If time is split equally, the parent with the higher income may be required to pay. “Some of the fights we see are less about the child’s best interest than about the parents’ pecuniary interest,” Kornfeld says.  

When to Get a Lawyer

Even in amicable situations where both parents have voluntarily agreed to custody arrangements, a family law attorney can be helpful. “Have a lawyer write it down and file with the court, so it becomes an enforceable agreement,” says Gourari. “Many times, parents think they agreed to something and then learn that it wasn’t properly recorded.”

An attorney can also structure a plan to include mediation or a parenting coordinator, which can help parents work through future disagreements without repeated court involvement. Because litigation can be deeply traumatizing for children, Gourari urges parents to set aside personal frustrations and stay focused on their child’s well-being. 

“The only way I can justify a protracted and serious fight is if your children are in danger with the other parent,” she says. “If the other parent is less than perfect, it would be better to deal with their imperfections than to spend years in court.”