Nicole Lapsatis

Document Type




This Note argues that New York State’s procedure for determining custody disputes allows a judge to abridge parents’ fundamental right to the care, custody, and control of their children without evidence of a compelling justification. Specifically, this Note argues that because of New York’s nebulous standard for determining what is the best interest of the child, more often than not, a judge is forced to substitute personal value judgments and biases to compensate for the lack of clear guidance provided to judges in order to determine what is in the child’s best interests. A judge, after attempting to overcome the systemic barriers resulting from custody courts, can decide to grant sole custody to one parent over another based on certain considerations that genuinely do not affect the best interests of the child.

Part I discusses a parent’s fundamental constitutional right to the care, custody, and control of his or her child and the requisite justification to infringe on that right. Part II defines New York’s “best interests of the child” rule. Part III analyzes the ways in which the “best interests of the child” rule actually operates in determining custody disputes when there is no allegation of child abuse, neglect, or domestic violence. This Part addresses all the shortcomings in implementing New York’s “best interests of the child” test, including the administrative burdens a judge faces in determining what custodial arrangement would most benefit the child’s interests. Lastly, Part IV advocates for a solution that would address all the impediments of New York’s “best interests of the child” test—a default presumption in favor of a joint custodial relationship. Part IV argues that a presumption in favor of joint legal custody, absent any proof of detriment or harm to the child, would operate to both protect a parent’s fundamental right to the care, custody, and control of his or her child and protect the child’s best interests.



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