Criteria for Unfit Parent in New York City

When spouses with kids separate in New York, the first thing that comes to mind, along with the division of marital property, is, who, among the parents, will get custody over the children? When deciding who, among the parents, will get custody, New York state criteria for an unfit parent generally is based on the best interests of the child.

New York’s Domestic Relations Law §§ 240 and 70 provides that either parent has no automatic right to sole custody of the child. Only the best interests of the child are considered in determining custody. New York cases have produced a wealth of jurisprudence on New York State criteria for an unfit parent. In recent cases, custody has been decided based on, not necessarily who is the unfit parent but, who is the less fit and more fit parent.

New York courts decide custody issues, depending on the best interests of the child. Included in this “best interests” standard is whether a parent is unfit. New York jurisprudence has provided criteria for determining who is an unfit parent. However, no single factor is controlling, and all factors are considered and used in evaluating the totality of circumstances to determine who the more fit parent is to have custody over the child.

Abuse, neglect, abandonment, and interference with visitation rights

If a parent has been found to hit the child or has abandoned the child for a particular period of time, this parent can be considered unfit. New York courts have also transferred custody from a mother to a father, when the mother willfully moved to another state and hid the whereabouts of the children from the father, such that the father had to employ an investigator to find his children (Entwistle v. Entwistle, 61 A.D.2d 380 (1978)).

Conditions in the home environment

A parent who provides better home environment conditions can be considered a better and more fit parent because the court does not want to leave the child in a dangerous and unhealthy environment. For instance, if the parent has a new partner who is violent or holds frequent parties with drugs and alcohol in the house, this parent can be considered unfit by New York courts to acquire custody over the child. If the parent also permits a new partner to stay the night when the children are in the same house, this could be considered against such parent in determining custody issues.

Although not controlling, a parent’s finances can also be considered in determining who is a better parent to be awarded custody of a child. It is not the sole determining factor, however, since child support is awarded to whoever has custody, and this child support has already been calculated to provide for the child’s necessities for living.

Substance abuse

If a parent is found to use and abuse drugs and alcohol, this parent is less likely to be granted custody. When talking about drug and alcohol abuse, it is important to show that the use is not merely occasional or social, but heavy, almost daily use that can impact the parent’s ability to function and thus, affects his relationship with the children.

Mental health

If the parent has a diagnosed mental illness, personality disorder, or emotional instability that impacts his or her ability to be a good parent to a child, this can be used to argue a case that such parent is an unfit parent.

Physical health

Aside from mental health, the parent’s physical health is also considered by the court in determining whether a parent is unfit. Clearly, if the parent cannot even physically care for his own self, it is safe to assume that such parent cannot also physically care for another person, let alone a child. If a parent has several physical illness or disability, such parent may be considered unable to physically care for the child. In this case, New York courts might declare a physically disabled parent unfit to be awarded child custody.

Child care arrangements

Parents have to work in order to support their children. The issue of who takes care of the children while the parents are at work, especially for young children, is taken into consideration by the court when determining which parent to award custody. If the parent goes out every night and leaves young children alone at home, despite the fact that these children have told their parent that they do not like to be left alone at home, this parent can be considered unfit.

Domestic Violence and Its Effect on Custody

Domestic violence is one of the most heavily weighted factors in a New York custody case. Under DRL § 240(1)(a), where allegations of domestic violence are proven by a preponderance of the evidence, the court is required to consider the effect of the violence on the best interests of the child in determining custody and parenting time. Evidence of violence does not have to be limited to incidents directed at the child — violence between the parents is relevant because of the trauma children suffer from witnessing it. Orders of protection, police reports, hospital records, photographs, and testimony from witnesses are all admissible. A finding that one parent has perpetrated domestic violence does not automatically disqualify that parent from any contact with the child, but it strongly informs how custody is allocated and whether supervised visitation is appropriate.

The Child's Wishes

The expressed preferences of a child can be a factor in a custody determination, though the weight a court gives those preferences depends on the child's age and maturity. New York judges may interview a child in chambers, outside the presence of the parents, in what is called a Lincoln hearing. The conversation is confidential and the transcript is sealed, but the judge may rely on it in making the custody decision. Older teenagers often have their views taken quite seriously; younger children's preferences carry less weight, particularly where there is reason to believe the child has been coached or influenced.

The Role of the Attorney for the Child

In contested custody cases in New York, the court will typically appoint an Attorney for the Child (sometimes still informally called a law guardian). This attorney represents the child — not the court — and advocates for the child's expressed wishes when the child is capable of articulating a position. For younger children or those whose stated preferences would put them at risk, the Attorney for the Child may substitute judgment and advocate for the child's best interests. The Attorney for the Child investigates, interviews collateral witnesses, reviews records, and presents a position to the court. Their recommendation is influential.

Forensic Custody Evaluations

When parental fitness is genuinely in question, the court may appoint a neutral forensic mental health evaluator. The evaluator meets with each parent individually, observes each parent with the child, interviews collateral witnesses (teachers, pediatricians, therapists), reviews records, and issues a written report with recommendations. The cost is significant and is typically allocated between the parents based on their respective incomes. A forensic report can be the most consequential document in a custody case, but it is not binding on the court; the judge ultimately weighs it along with all the other evidence.

Modifying a Custody Order Based on Changed Circumstances

Custody orders are never truly final in the way that property division is. Under New York law, a custody order can be modified upon a showing of a substantial change in circumstances that makes modification necessary in the best interests of the child. Allegations that a custodial parent has become unfit — through new substance abuse, mental health deterioration, a dangerous new partner, neglect, or interference with the other parent's relationship with the child — can support a modification petition. The standard is demanding, and conclusory allegations are not enough; the petitioning parent must come forward with specific, credible evidence.

Building a Case That a Parent Is Less Fit

Practical evidence-gathering is essential. Useful categories of evidence include:

• Documentary records. School attendance and grade reports, pediatrician records, dental records, therapy records, and child welfare agency records.
• Communications. Text messages, emails, and voicemails that show how the other parent communicates with the child or about the child.
• Police and protective orders. Police incident reports, 911 records, and any orders of protection issued in Family Court, Supreme Court, or Criminal Court.
• Substance abuse evidence. Failed drug tests, DUI records, treatment records, and witness testimony about visible intoxication around the child.
• Witness testimony. Teachers, coaches, neighbors, family members, and the child's therapist can all provide first-hand observations.
• Photographs and video. Photographs of the home environment, of injuries, or of unsafe conditions.
• A parenting journal. Contemporaneous notes about missed parenting time, late pickups, late drop-offs, sick child handoffs, and other day-to-day events. Courts give weight to contemporaneous notes that they will not give to memory testimony.

False or Exaggerated Allegations Cut Both Ways

One of the most common ways for a parent seeking custody to undermine their own case is to overstate the other parent's faults. Courts are alert to allegations that are not supported by the evidence and to patterns of parental alienation — that is, attempts to turn the child against the other parent. A parent who is found to have made knowingly false allegations, or to have actively interfered with the child's relationship with the other parent, can lose custody on that basis alone. The willingness of each parent to foster a relationship between the child and the other parent is itself one of the factors New York courts consider.

If you are thinking of declaring a custodial parent unfit or would like to acquire custody over your children, New York state criteria now requires just proof that the other parent is less fit than you, and not necessarily unfit (which is more difficult to prove). Who is the parent more fit to have custody can be proven by evidence, documentary and testimonial, to be provided by the children themselves, witnesses, social services, medical reports, and court reporters. If you need assistance in acquiring custody over your children, we, at the law offices of Albert Goodwin, are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].