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Court Awards Custody to Father Who Had Been Primary Caregiver for Two Years- Dariel M. v. Aurelyn Z.G., 2020 NY Slip Op 506 (N.Y. App. Div. 2020)


In this case the Appellate Division considered an appeal by the mother of an order from the Bronx County Family Court granting the father primary physical custody of their child.

When considering custody, the Family Court’s overriding consideration is what is in the best interests of the child.  Ideally, both parents are equally capable of providing the care the child needs and are able to co-parent effectively despite the end to their romantic relationship.  However, that is not always the case.  Factors that the court will consider include:  which parents has been the  primary nurturer of the child, each parent’s parenting skills, the physical and mental health of each parent, whether there has been domestic violence in the home, each parent’s work schedules, the child’s relationship with other family members, the child’s preferences, and parental cooperation.  No one factor is determinative and the court has a great deal of discretion in making custody decisions.  The court will look at all factors and consider evidence presented by both parents to figure out the custody and visitation arrangement that is in the best interests of the child.

In Dariel M. v. Aurelyn Z.G., the parents split up and the mother left the family home, leaving the child in the family home with the father.  In the two years that she had lived away from the family home, appears as if the mother was not greatly involved in the raising of the child.  In making its decision, the court gave great weight to the fact that the father had been the child’s primary caregiver for the 2 years leading up to this petition for custody. This means that father took the lead in providing day-to-day care for the child including tending to the child’s emotional, physical, and educational needs.  Further, the court noted that the father was better able to provide a stable environment for the child and tend to the child’s educational and medical needs.  The mother, on the other hand, had not taken an active role in proving for the child’s educational needs or medical life for the past 2 years.  In fact, she had allowed the child’s health insurance coverage to lapse.  In addition, the mother did not have a stable job or stable housing.

The court was also impressed by evidence that the father would foster the relationship between the mother and the child.  Because generally it is in the best interests for a child to have a relationship with both parents whenever possible, courts will consider each parent’s ability to cooperate with the other parent and each parent’s effort to encourage a relationship with the other parent.  The court will look favorably upon the parent who exhibits more willingness to cooperate with the other parent.

After reviewing the evidence, the Appellate Division affirmed the Family Court’s decision that the father should have primary physical custody of the child.  While the mother lost the case, she does have the right to petition the court in the future to request a modification to the custody order.  To prevail, the mother would have to present evidence that circumstances have changed since such that it would be in the best interests of the child to make a change in the custody arrangement.  For example, if the mother secured stable employment and stable housing, and was more involved with the care of the child, the court might modify the custody arrangement if it feels doing so is in the best interests of the child.


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