In New York Custody, “Who Loves the Children More” Is Not the Legal Test

In Matter of Ola A. v Bafode D., 2026 NY Slip Op 02149 (1st Dept Apr. 9, 2026), the Appellate Division, First Department affirmed a New York County Family Court order awarding the mother primary physical custody and granting the father a defined parenting time schedule that included alternate weekends, summer breaks, holidays, and one midweek dinner visit. The decision is short, but it captures a custody reality that New York judges and referees strictly follow and that many parents initially resist: the court’s “best interests” analysis is not a referendum on love, devotion, or who wants the children more. It is a fact-driven assessment of stability, parenting performance, and the ability to support the children’s day-to-day lives while maintaining the other parent’s relationship.

Why it matters in NYC custody cases

The First Department applied the standard it uses in most custody appeals: whether the trial court’s determination has a sound and substantial basis in the record and whether the appellant identified a valid reason to disturb it. That standard is deferential because Family Court judges and referees see the witnesses, assess credibility, and observe the parties’ demeanor in a way an appellate court cannot.

For NYC parents litigating custody in Manhattan Family Court or Supreme Court custody proceedings, the practical message is simple. Custody cases are usually won or lost at the fact-finding level. An appeal is not a second trial. Unless the record is thin, inconsistent, or legally flawed, appellate courts will typically affirm.

What the Family Court focused on: stability and day-to-day parenting, not sentiment

The First Department highlighted undisputed testimony showing that after the parents separated in 2023, the children lived primarily with the mother. The court emphasized that the mother provided a stable and loving home and that she managed the children’s medical appointments, school drop-offs and pickups, and social activities. Those facts are not incidental. In New York custody law, the parent who demonstrates consistent management of the children’s daily needs frequently occupies the strongest “stability” position, particularly when the other parent’s proof is more general or more aspirational.

The record also supported that the mother communicated with the father and facilitated his parenting time, including rearranging her own schedule to accommodate it. That point matters because New York courts routinely weigh which parent is more likely to foster the children’s relationship with the noncustodial parent. A parent does not have to be perfect, but they do need to be credible and child-focused in how they handle co-parenting logistics.

Love is relevant, but it is not decisive

The father’s argument, as reflected in the decision’s language, was not that he was uninvolved or indifferent. He was described as loving his children and playing an active role in their lives. The First Department did not dismiss that. Instead, it framed it correctly in a best-interests analysis. The court held that, despite the father’s love and involvement, the testimony showed he did not provide the same degree of stability as the mother did.

This is the custody principle parents need to understand early. New York courts assume many parents love their children. Love is not the differentiator. Stability, consistency, judgment, and follow-through often are. If one parent is doing the routine work of getting children to school, coordinating medical care, maintaining a predictable home environment, and ensuring the other parent has access without drama, that parent is building the kind of record that courts rely on.

Discretion and fact-specific outcomes are not loopholes. They are the system.

Custody determinations in New York are discretionary precisely because family structures are different and children’s needs vary. The “best interests of the child” standard is intentionally flexible so that courts can weigh the totality of circumstances rather than checking boxes. That flexibility is also why many parents feel frustrated. They want a formula. There is no formula.

Ola A. shows how that discretion plays out in practice. The mother’s stability and day-to-day parenting were weighed heavily. The father’s positive relationship with the children was not ignored, but it did not overcome the stability evidence. And rather than shutting the father out, Family Court built a schedule that preserved meaningful parenting time, including weeknight contact and substantial time during breaks and holidays. The court treated parenting time as a structured way to maintain the parent-child bond, not as a consolation prize.

Practical application for NYC parents in custody disputes

If you are seeking primary physical custody in New York City, this decision reinforces what judges respond to. They respond to the parent who can show stable routines, school engagement, medical management, and a home environment that is predictably safe and supportive. They also respond to the parent who can show they have been facilitating access and communicating in a way that reduces conflict, because courts understand that children should not be forced to choose between parents.

If you are the parent opposing primary custody, the takeaway is not that you need to “prove you love the children.” Courts assume that. Your case needs to show stability on your end and explain, with facts, why the other parent’s “stability narrative” is incomplete or misleading. That can mean documenting your role in school logistics, medical care, homework routines, and extracurricular coordination, along with your reliability in exchanges and scheduling. It also means avoiding conduct that suggests you create instability through last-minute cancellations, inconsistent availability, or conflict-driven communication.

Finally, if your goal is not primary custody but a strong parenting time schedule, Ola A. is a reminder that courts can and do craft schedules that reflect the children’s needs and a parent’s relationship with them. The strongest parenting time outcomes usually come from a record that demonstrates consistent involvement and a willingness to put the children first, even when the adults do not get along.

Talk to NYC custody counsel who build the record that courts rely on

Custody is rarely decided by who is more emotional in court or who tells the most compelling story about love. It is decided by evidence, credibility, and the day-to-day reality of the children’s lives. Matter of Ola A. v Bafode D. is a clean example of that principle in action.

If you are in a New York City custody dispute and you need a strategy built around the factors courts actually apply, the Law Offices of Mindin & Mindin, P.C. can help. Contact Mindin & Mindin, P.C. for a confidential consultation to discuss primary custody, parenting time, and how to present the facts in a way that aligns with New York’s best-interests framework.