CHICAGO: CUSTODY CHECKLIST, by New York Divorce Attorney

The Gary and Eni Skoien case out in Chicago earlier this year made me think of this topic for a post: what are the factors a court considers in awarding custody to a parent? I have probably done a ton of posts already that pretty much say the same thing, but what is a little repetition going to hurt?
So here goes. What you need to know about custody and the abc’s of how to win a custody battle in New York and around the country:
1) First of all, understand that the court is ultimately only concerned with what is in the “best interest of the child.” The parent who gets custody will be the parent who can best provide for the child’s “best interest.” What, you may ask, is the “best interest” of the child? How does the court determine that for purposes of custody? Well, the court considers a number of factors including but not limited to:

A. Physical ability and fitness of each parent.
B. Mental ability and fitness of each parent (Russo v. Russo 257 AD 2d 926)
C. Child’s age
D.  Child’s physical and mental health (Cornelius C. v. Linda C 123 AD 2d 536)
E. Child’s special needs (Ocampa v. Jiminez 27 AD 3d 75)
F. Child’s preference (Eschbach v. Eschback 56 NY 2d 167)
G. Religion
H. Who has been the primary caretaker (Lenczycki v. Lencaycki  152 AD 2d 621)
I. Race
J. The sexual preference of each parent
K. Adultery and its impact upon children
L. Separation of siblings (Meyer v. Rudinger 285 AD 2d 714)
M. Locale of parents – stability of one home and/or relocation of parent (Kemp v. Kemp 19 AD 3d 748)
N. Spousal abuse (DRL sec. 240 (1)(a); Finkbeiner v. Finkbeiner 270 AD 2d 417)
O. Child abuse
P. Child’s refusal to be with one parent
Q. Parent’s work schedule (Ebel v. Urlich 273 AD 2d 530)
R. Children’s schedule
S. The need for supervised visitation
T. Ability of custodial parent to support the child (Matter of Louse E.S. v. W. Stephen S. 64 NY 2d 946)
U. The willingness of one Parent to foster the child’s relationship with the other parent (Darla N. v. Christine N 289 AD 2d 783)
V. Prior criminal conduct of a parent (Russo v. Russo 257 AD 2d 926)
W. The presence of, and the children’s relationship with, a parent’s “significant other.” (Fairbanks V. Diehl 268 AD 2d 867)
X. Alchol or drug abuse of one parent (Melvina H. V. James Lee W 269 AD 2d 186)

Source: State of New York Appellate Division, Supreme Court 2nd Judicial Department, Continuing Legal Education Law Guardian Program, 2007
Originally published March 22, 2009