New York Custody “Best Interests”: Stability, Primary Caretaker, and the Parent Most Likely to Foster the Other Parent’s Relationship

In Matter of St. Sume v Herrera, 2026 NY Slip Op 01521 (2d Dept, Mar. 18, 2026), the Appellate Division reviewed a Kings County Family Court custody order that did two things at once. It awarded the father sole legal and physical custody based on the classic “best interests of the child” analysis, and it also left a major hole in the parenting time schedule by failing to set any specific summer, holiday, and vacation access for the mother. The Second Department largely affirmed the custody outcome, but it modified the order to require additional parental access and sent the case back for the Family Court to craft an actual schedule.

For NYC parents litigating custody in Brooklyn, Manhattan, Queens, the Bronx, or Staten Island, this decision is useful because it highlights the three best interests themes that show up in almost every contested custody hearing. Courts gravitate toward stability, the parent who has actually performed the day-to-day caregiving role, and the parent who is most likely to foster the children’s relationship with the other parent. It also reinforces a practical point that gets overlooked in “win custody” mindsets. Even when a court awards sole custody to one parent, the noncustodial parent is usually still entitled to meaningful parenting time, and the order must be specific enough to avoid conflict and enforcement problems.

In this case, the parties were never married and share two children. Both parents filed competing petitions for sole legal and physical custody. After years of temporary orders shifting physical custody between the parents, the Family Court ultimately granted the father sole legal and physical custody after a hearing and denied the mother’s petition. The order did award the mother certain parental access, but it did not provide for additional parenting time during summer months, school holidays and vacations, or legal holidays that do not fall on a Friday or Monday.

On appeal, the mother challenged the custody determination and also challenged the lack of a full parenting time schedule.

The “best interests of the child” standard and the factors courts actually weigh

New York custody is decided under the “totality of the circumstances” and what serves the child’s best interests, not what feels fair to either parent. The Second Department stated the common framework that Family Court judges apply in initial custody determinations, including which alternative best promotes stability, the available home environments, the parents’ past performance, each parent’s relative fitness and ability to guide and provide for the child’s wellbeing, and critically, each parent’s willingness to foster the child’s relationship with the noncustodial parent. The court also reiterated that proven domestic violence must be weighed in the best interests analysis.

These are not abstract legal phrases. In NYC custody litigation, these factors typically translate into evidence about routines, school involvement, medical and therapy management, reliable housing, the parents’ actual availability, and whether either parent has a pattern of undermining the other parent’s role.

Why the father’s custody award was affirmed: stability, primary caregiver history, and fostering the other parent

The Second Department held that the Family Court’s custody determination had a sound and substantial basis in the record, and it emphasized three points that drive many custody outcomes.

First, the father had been the primary caregiver for most of the children’s lives. Second, he was better suited to promote stability in the children’s lives. Third, he was the parent most likely to foster a relationship between the children and the noncustodial parent. Accepting the trial court’s credibility determinations, the appellate court found these considerations sufficient to affirm sole legal and physical custody to the father.

For our NYC clients, this is the core lesson. Courts care less about who is the louder advocate and more about who has demonstrated consistent, child-focused parenting over time. If you want custody, you must be able to show stability and a credible caregiving history. If you want to defend custody, you must protect the stability narrative and avoid conduct that makes you look unwilling to co-parent. Judges are always watching for the “gatekeeper” parent. Being the parent most likely to foster the other parent’s relationship is often decisive when both parents appear otherwise fit.

The schedule problem: parenting time must be specific, frequent, and regular

The part of the decision that matters most for day-to-day life is the appellate modification. The Second Department reiterated that parental access is a joint right of the noncustodial parent and the child, and that parenting time must be frequent and regular so the relationship can be meaningful and nurturing. It then held that, absent extenuating circumstances, courts should establish a schedule that gives both parents significant quality time when the child is not in school.

Here, the order was silent about the mother’s parenting time during summers, school holidays and vacations, and certain legal holidays. Given the parties’ relationship, the appellate court held the Family Court should have set forth a specific schedule. The Second Department modified the order to require additional parental access in those time periods and remitted the matter to Kings County Family Court to issue an amended order with an appropriate schedule in the children’s best interests.

This is a major practical takeaway for NYC custody cases. Vague parenting time provisions are litigation fuel. They lead to fights at every school break, every holiday, and every summer. A custody order that fails to specify those periods is not just inconvenient. It is often functionally unenforceable and invites power struggles. If you are negotiating a stipulation of settlement, litigating a custody trial, or seeking to enforce parenting time, you should insist on a parenting schedule that covers summers, holiday rotations, school recesses, and non-school days in a way that can be followed without repeated court intervention.

What NYC parents should take from this decision

If you are the parent seeking custody, St. Sume v Herrera reinforces that stability and proven caretaking matter, and that courts value the parent who can credibly show they will foster the children’s relationship with the other parent. That usually requires disciplined behavior in communications, consistent involvement in school and medical life, and avoiding reactive conduct that makes you look like you are using custody to punish the other parent.

If you are the parent facing an adverse custody award, the decision also shows that even when you do not win residential custody, you can and should fight for a meaningful, structured parenting plan. Courts are expected to create specific schedules that protect the child’s relationship with the noncustodial parent, especially for summers and holidays, unless there is a compelling reason not to.

Speak with NYC custody counsel who builds the record and secures the schedule

Custody litigation in New York City is won by record-building and credibility, not theatrics. It is also won by enforceable orders. If you are facing a contested custody case in NYC Family Court or Supreme Court, or you are dealing with an order that is vague and impossible to follow, the Law Offices of Mindin & Mindin, P.C. can help you pursue a strategy that aligns with what New York courts actually prioritize: stability, proven caregiving, and a workable parenting schedule that reduces conflict.

To discuss your custody matter and what approach best fits your facts, contact Mindin & Mindin, P.C. for a confidential consultation.