New York Family Law Blog
In New York child custody cases, courts must decide what arrangement is in the best interests of the child. Custody decisions are based on many factors, including each parent’s relationship with the child, ability to provide care, and willingness to support the child’s relationship with the other parent. In most custody cases, the parents are already living separately or preparing to live in separate households. In David v. Stephanie, the court was asked to make a custody decision even though the parents were still living together. This case raised an important legal issue: whether a court could issue a custody order before the parents formally separated.
Background Facts
The parents in this case were married and had two minor children. They lived together in the same home during their divorce proceedings. Both parents filed motions asking the court to award them custody of the children and exclusive possession of the marital home. The mother also asked the court for permission to relocate with the children to the West Coast. The father opposed the relocation and asked for joint legal custody and equal parenting time in New York.
The case was treated as an initial custody determination. The court held a full hearing on the parents’ motions and reviewed the evidence and testimony about the children’s living situation, the parents’ involvement in their lives, and the proposed move.
Questions Before the Court
The court had to answer two questions. First, could it make a custody determination while both parents still lived in the same home? Second, if so, what custody arrangement would be in the children’s best interests, especially with the mother requesting to relocate out of state?
Court’s Decision
Normally, courts are hesitant to get involved in custody issues when the parents are still living together and the children’s needs are being met. That principle was based on a 1936 Court of Appeals case, People ex rel. Sisson v. Sisson, which said courts should avoid interfering in a family’s private affairs unless the children are at risk. However, since that time, family law has changed significantly, especially with the introduction of no-fault divorce under Domestic Relations Law § 170(7), which requires custody issues to be resolved before a divorce is granted.
The court decided that it had the authority to issue a custody order, even though the parents still lived together. It found that both parents had asked for a custody determination and intended to live separately as soon as the court ruled on the issue. The court concluded that a custody order was necessary so that the parents could proceed with the divorce and make future living arrangements that would be in the best interests of the children.
While the court redacted some details in its published decision, it confirmed that both parties had participated in a full custody hearing and that a final custody determination had been made based on the evidence and the children’s needs.
Discussion
New York courts generally rely on the principle that custody decisions must be based on the totality of the circumstances and what is best for the children. Courts look at factors such as each parent’s ability to provide a stable home, meet the children’s educational and emotional needs, and encourage a relationship with the other parent.
In this case, the court considered whether it could make a prospective custody decision—meaning a custody order that would take effect after the parents separated—even though the parents were still living in the same home. The court found that doing so was not only allowed but necessary. It explained that refusing to make a custody decision in this situation could force parents to remain in the same home longer than needed or pressure one parent to move out without a parenting plan in place.
The court reviewed past cases where courts issued custody orders despite the parents living together. In Faber v. Faber, for example, the court approved a visitation schedule while the parents lived together. More recently, in Vickie F. v. Joseph G., a court awarded custody to one parent despite the parties sharing the same home, due to the breakdown in communication.
The court also addressed the practical issue of exclusive possession of the marital residence. When one parent asks the court to award them exclusive use of the home, the court often needs to issue a temporary custody or parenting time order. This prevents one parent from losing access to the children after being ordered to leave the shared residence.
In this case, both parents requested exclusive possession of the home. The court found that granting one parent that request without setting a custody arrangement could harm the children. The court also noted that a custody decision is always based on a prediction about what arrangement will best serve the child’s needs going forward. Therefore, making a decision while the parents were still living together was appropriate.
Conclusion
The decision in David v. Stephanie shows that New York courts are willing to issue custody orders even before parents physically separate. When both parents request a custody ruling and plan to live apart, the court may proceed with a custody determination to support the children’s best interests and allow the divorce to move forward.
This case also illustrates how courts may interpret long-standing legal rules in light of current realities in family law. The court balanced past precedent with modern legal procedures, including the requirement to resolve custody before granting a no-fault divorce.
If you are going through a divorce and still living with your co-parent, or if you are unsure how to move forward with a custody agreement, you do not need to wait until you move out. Speak with an experienced New York child custody lawyer at Stephen Bilkis & Associates. We can help you understand your rights, prepare for court, and make informed decisions that protect your family.