OPINION OF THE COURT

Jasen, J.

The question to be resolved on this appeal is whether custody of the youngest child of the parties herein should be changed, along with that of her two older sisters, from her mother to her father.

Plaintiff, Donald Eschbach, and defendant, Rita Eschbach, were married on November 23, 1963. Donald Eschbach was granted a divorce on May 28,1979 on the basis of the couple having lived separate and apart pursuant to a separation agreement for one year. (Domestic Relations Law, § 170, subd [5].) Custody of the three daughters of the marriage was granted to their mother pursuant to an oral stipulation of the parties entered in the minutes of the court at the inquest hearing held on January 16,1979. The stipulation, which also provided visitation rights for the children’s father, was incorporated but not merged in the judgment of divorce.

Events over the course of the next year indicated a progressive deterioration in the mother’s relationship with her daughters. On several occasions, the two older girls, Karen and Ellen, ran away from defendant’s home, either to their father’s residence or to friends’ homes. The record also reveals that the mother refused to allow the girls to participate in extracurricular activities at school and imposed severe limitations on what activities they could *170participate in and with whom they were allowed to associate. Concerned that the children were being raised in an unhealthy atmosphere which was affecting their emotional and psychological development, the father commenced this action seeking a modification of the judgment of divorce to the extent of awarding him custody of his three daughters.

The trial court took testimony from both parents, representatives of the school, and the two older daughters. Although the youngest daughter, Laura, did not testify, she was interviewed by the court in camera, and a transcript of that proceeding is included in the record before us. Additionally, a report was prepared for the court by a probation officer who had interviewed the parties.

The trial court found that the mother’s unreasonable demands and restrictions were jeopardizing the older daughters’ emotional and intellectual -development and that there was a total breakdown of communication between the older children and their mother. Furthermore, the court found that the strong prefrence to live with their father expressed by these children, who were' age 16 and 14 at the time of the hearing, should be given consideration.

Although Laura, who was 10 at the time of the hearing, had not expressed a similarly strong preference to live with her father rather than her mother, the court recognized her strong desire to remain with her sisters. After considering all the factors presented, the court found that her best interests would be served by continuing her close relationship with her sisters and that a change of custody to her father was necessary under these circumstances.

On appeal, the Appellate Division agreed that “the antagonism [of the older] children * * * toward defendant and their strong preference to live with plaintiff” (83 AD2d 845, 846) required a change in custody for Karen and Ellen. That court, however, modified the judgment and ordered that Laura’s custody remain with the mother because there was “nothing to suggest that defendant has been anything but a fit parent toward her.” (Id.)

On this appeal, the father seeks custody of Laura. The mother has not sought a further appeal from that part of the order which affirmed the judgment awarding custody *171of Karen and Ellen to the plaintiff. The question on this appeal is thus limited to which parent should have custody of Laura. We agree with the trial court that Laura’s best interests require a change in her custody from her mother to her father.

Any court in considering questions of child custody must make every effort to determine “what is for the best interest of the child, and what will best promote its welfare and happiness”. (Domestic Relations Law, § 70; Matter of Ebert v Ebert, 38 NY2d 700, 702; Obey v Degling, 37 NY2d 768, 769; Matter of Lincoln v Lincoln, 24 NY2d 270; Bistany v Bistany, 66 AD2d 1026; Sandman v Sandman, 64 AD2d 698, mot for lv to app den 46 NY2d 705; Matter of Saunders v Saunders, 60 AD2d 701.) As we have recently stated, there are no absolutes in making these determinations; rather, there are policies designed not to bind the courts, but to guide them in determining what is in the best interests of the child. (Friederwitzer v Friederwitzer, 55 NY2d 89, 93-95.)

Where the parties have entered into an agreement as to which parent should have custody, we have stated that “[pjriority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded” to that agreement. (Matter of Nehra v Uhlar, 43 NY2d 242, 251.) This priority is afforded the first determination of custody in the belief the stability this policy will assure in the child’s life is in the child’s best interests. (Friederwitzer v Friederwitzer, supra, at p 94; Corradino v Corradino, 48 NY2d 894; Matter of Nehra v Uhlar, supra; Obey v Degling, supra; Dintruff v McGreevy, 34 NY2d 887; Aberbach v Aberbach, 33 NY2d 592; People ex rel. Selbert v Selbert, 60 AD2d 692.) But as this court noted in Friederwitzer, “[n]o agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child’s best interests (People ex rel. Wasserberger v Wasserberger, 42 AD2d 93, 95, affd on opn below 34 NY2d 660).” (Friederwitzer v Friederwitzer, supra, at p 95.) Thus, an agreement between the parties is but one factor to be weighed by the court in deciding whether a change of custody is warranted.

*172The weight to be given the existence of a prior agreement depends on whether the prior disposition resulted from a full hearing by a trial court or was merely incorporated in the court’s judgment pursuant to an uncontested stipulation. (Friederwitzer v Friederwitzer, supra, at pp 94-95.) This is particularly true where, as in this case, the rules of the court require that the decree specify that “as to support, custody and visitation, no such agreement or stipulation is binding” (22 NYCRR 699.9 [f] [4]) and that the court retains jurisdiction for the purpose of making such further custody decree “as it finds appropriate under the circumstances existing at the time application for that purpose is made to it”. (22 NYCRR 699.9, Approved Forms, J13.) Since the court was not bound by the existence of the prior agreement, it has the discretion to order custody changed “when the totality of circumstances, including the existence of the prior award, warrants its doing so in the best interests of the child.” (Friederwitzer v Friederwitzer, supra, at p 96.)

Primary among those circumstances to be considered is the quality of the home environment and the parental guidance the custodial parent provides for the child. (Matter of Ebert v Ebert, 38 NY2d 700, 702, supra; Bistany v Bistany, 66 AD2d 1026, supra; Sandman v Sandman, 64 AD2d 698, mot for lv to app den 46 NY2d 705, supra; Matter of Saunders v Saunders, 60 AD2d 701, supra.) While concerns such as the financial status and the ability of each parent to provide for the child should not be overlooked by the court, an equally valid concern is the ability of each parent to provide for the child’s emotional and intellectual development. (Sandman v Sandman, supra; Porges v Porges, 63 AD2d 712; Matter of Saunders v Saunders, supra.)

In determining whether the custodial parent can continue to provide for the child’s various needs, the court must be cognizant of the individual needs of each child. It is, of course, entirely possible that a circumstance such as a total breakdown in communication between a parent and child that would require a change in custody would be applicable only as to the best interests of one of several children. (Bistany v Bistany, supra; Sandman v Sandman, *173supra; Porges v Porges, supra.) To this end, it is important for the court to consider the desires of each child. But again, this is but one factor to be considered; as with the other factors, the child’s desires should not be considered determinative. (Matter of Ebert v Ebert, supra, at p 702; Obey v Degling, 37 NY2d 768, 770, supra; Dintruff v McGreevy, 34 NY2d 887, 888, supra; Sandman v Sandman, supra.) While not determinative, the child’s expressed preference is some indication of what is in the child’s best interests. Of course, in weighing this factor, the court must consider the age and maturity of the child and the potential for influence having been exerted on the child. (See, e.g., Obey v Degling, supra, at p 770; Dintruff v McGreevy, supra, at p 888.)

Finally, this court has long recognized that it is often in the child’s best interests to continue to live with his siblings. While this, too, is not an absolute, the stability and companionship to be gained from keeping the children together is an important factor for the court to consider. “Close familial relationships are much to be encouraged.” (Matter of Ebert v Ebert, supra, at p 704.) “Young brothers and sisters need each other’s strengths and association in their everyday and often common experiences, and to separate them, unnecessarily, is likely to be traumatic and harmful.” (Obey v Degling, supra, at p 771; Matter of Gunderud v Gunderud, 75 AD2d 691; Bistany v Bistany, supra.)

The weighing of these various factors requires an evaluation of the testimony, character and sincerity of all the parties involved in this type of dispute. Generally, such an evaluation can best be made by the trial court which has direct access to the parties and can supplement that information with whatever professionally prepared reports are necessary. “In matters of this character ‘the findings of the nisi prius court must be accorded the greatest respect’ (Matter of Irene O., 38 NY2d 776, 777)” (Matter of Ebert v Ebert, supra, at p 703; Bistany v Bistany, supra). Appellate courts should be reluctant to substitute their own evaluation of these subjective factors for that of the nisi prius court (People ex rel. Portnoy v Strasser, 303 NY 539, 542; Bistany v Bistany, supra), and if they do, should articulate *174the reasons for so doing. Similarly, the existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances. (Friederwitzer v Friederwitzer, 55 NY2d 89, supra.)

Turning then to the facts of this case, we hold that the determination of the trial court that the totality of the circumstances warrants awarding custody of Laura to her father conforms to the weight of the evidence. The record indicates that although the mother is not an unfit parent for Laura, she is, under all the circumstances present here, the less fit parent. Thus, the trial court was not bound by the stipulation of the parties-, but was free to, and indeed required to, review the totality of the circumstances to determine what would be in Laura’s best interests. In doing so, the Trial Judge weighed the testimony of all the parties, including Laura, and considered the testimony of school officials and reports from a probation officer appointed by the court. The court made no specific finding that defendant was an unfit mother for Laura, but a finding that the mother was the less fit parent is implicit in its order to change custody and is supported by the record. Additionally, the trial court, while noting Laura’s ambivalence as to which parent she would prefer to live with, gave significant weight to her strong desire to remain with her older sisters. The record indicates that all relevant factors, including the mother’s ability to cope with raising children as they approach maturity and the father’s desire to- provide a fuller and more enriched environment for his daughters were considered. It is abundantly clear from the record that the trial court, in this case, made a careful and studied review of all the relevant factors. As the determination of the nisi prius court, we believe this holding should be accorded great deference on review.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the judgment of Supreme Court, Westchester County, reinstated.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, etc.

OPINION OF THE COURT

Meyer, J.

Extraordinary circumstances are not a sine qua non of a change in parental custody of a child, whether the original award of custody is made after plenary trial or by adoption of the agreement of the parties, without contest, and without merging the agreement in the judgment. The more particularly is this so with respect to a judgment governed as is the judgment in this case by rule 699.9 of the Appellate Division, Second Department (22 NYCRR 699.9), pursuant to which the trial court expressly “retains jurisdiction *** for the purpose” to the extent permitted by law, “of making such further decree with respect to *** custody *** as it finds appropriate under the circumstances existing at the time application for that purpose is made to it” (22 NYCRR 699.9 [b], Approved Forms For Matrimonial Judgments, J13). The order of the Appellate Division affirming Special Term’s order changing custody to the father should, therefore, be affirmed, without costs.

The parties were married in 1968. An uncontested divorce was awarded plaintiff wife after inquest, by judgment dated July 24, 1979. The separation agreement en*92tered into by them provided that as to the two children of the marriage, Lisa and Nicole, the husband and wife would have joint custody* with the children residing with the wife and reasonable visitation rights to the husband. It provided further that the terms of the agreement would survive a judgment of divorce “without merging, other than child support which shall merge in said decree.” The judgment of divorce provided that the parties have joint custody of the children, the father to have visitation as provided in the separation agreement, and that the agreement should survive and not merge in the judgment. It also contained the retention of jurisdiction provision (Approved Forms, J13) required by Appellate Division rule.

In September, 1979, the mother, who had been living with the children on Long Island close to the residence of the father, moved with the children to an apartment on East 93rd Street in Manhattan. Both parties and the children have been reared as Orthodox Jews, strictly observing both the Sabbath and the dietary laws. The children, who had attended a yeshiva on Long Island, were transferred to a yeshiva in Manhattan. Less than a year after the original judgment, in April, 1980, the father moved for modification of the judgment of divorce so as to award him sole custody of his daughters. The mother cross-moved for sole custody. After a trial during which the mother, father and both children testified, the Trial Judge found the father to be “a loving and caring person *** well qualified as a fit parent.” He found that the mother, while not unfit, was less fit to have custody than the father because her own best interests and social life, appeared to be of “paramount concern to her, to the total exclusion of the best interests of her children.” He predicated that conclusion on the mother having frequently left her then 11- and 8-year-old girls alone in the apartment until late at night when she went out for the evening even though the children informed her that they were afraid to stay alone, and on the mother’s profession of raising the children in the tenets of Orthodox Judaism while at the same time flagrantly violating those tenets by permitting a male *93friend to stay in the apartment and share her bed to the knowledge of the children, by failing, except rarely, to take the children to Sabbath services, and by permitting the male friend to violate the Sabbath by turning on the television, all of which confused the children and was contrary to their religious beliefs and detrimental to their religious feeling. Noting the older daughter’s strong desire to live with her father and the younger child’s wish to continue living with her mother but not to be separated from her sister, the Trial Judge acknowledged that the wishes of the children was an element to be considered, but held it controlled in this instance by the overriding considerations above detailed. He therefore modified the judgment to award custody of both children to the father.

The Appellate Division by a divided court modified in a respect not material to our determination and affirmed Special Term’s order. The majority found the Trial Judge’s conclusion that custody in defendant would serve the best interests of the children to be supported by the evidence. The dissenter, interpreting our decisions in Corradino v Corradino (48 NY2d 894) and Matter of Nehra v Uhlar (43 NY2d 242) as holding that custody “pursuant to an agreement should not be transferred absent extraordinary circumstances” (81 AD2d, p 606) of which he found no evidence in the record, voted to reverse and deny the father’s motion. The mother’s appeal to us presents the question of law whether extraordinary circumstances are required as the dissent suggested. We affirm.

The only absolute in the law governing custody of children is that there are no absolutes. The Legislature has so declared in directing that custody be determined by the circumstances of the case and of the parties and the best interests of the child, but then adding “In all cases there shall be no prima facie right to the custody of the child in either parent” (Domestic Relations Law, § 240;. see, also, § 70). Because the section speaks to modification as well as to an original matrimonial judgment, “all cases” must be read as including both. That, of course, does not mean that custody may be changed without regard to the circumstances considered by the court when the earlier award was made but rather that no one factor, including the *94existence of the earlier decree or agreement, is determinative of whether there should, in the exercise of sound judicial discretion, be a change in custody.

Indeed, in Matter of Nehra v Uhlar (43 NY2d 242, supra), we were at pains to point out many of the factors to be considered and the order of their priority. Thus, we noted that “Paramount in child custody cases, of course, is the ultimate best interest of the child” (p 248), that stability is important but the disruption of change is not necessarily determinative [pp 248, 250), that the desires of the child are to be considered, but can be manipulated and may not be in the child’s best interests (p 249), that self-help through abduction by the noncustodial parent must be deterred but even that “must, when necessary, be submerged to the paramount concern in all custody matters: the best interest of the child” (p 250), that the relative fitness of the respective parents as well as length of time the present custody had continued are also to be considered (pp 250-251), that “Priority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded to the first custody awarded in litigation or by voluntary agreement” (p 251), whereas of lesser priority will be the abduction, elopement or other defiance of legal process as well as the preferences of the child (id.).

The priority which is accorded the first award of custody, whether contained in court order or voluntary agreement, results not from the policy considerations involved in res judicata (which permits change in custody decrees when warranted by the circumstances, Kunker v Kunker, 230 App Div 641, 645; cf. Matter of Bachman v Mejias, 1 NY2d 575, 581; Goldman v Goldman, 282 NY 296, 304; see Restatement, Judgments 2d [Tent Draft No. 3], § 74, Comment d; and [Tent Draft No. 5], § 61, Comment f, illustration 11), so much as from the conceptions that stability in a child’s life is in the child’s best interests and that the prior determination reflects a considered and experienced judgment concerning all of the factors involved (Martin v Martin, 74 AD2d 419, 427). But the weight to be given the prior award necessarily depends upon whether it results from the Trial Judge’s judgment after consideration of all *95relevant evidence introduced during a plenary trial or, as here, finds its way into the judgment through agreement of the parties proven as part of a proceeding in which custody was not contested and no evidence contradictory of the agreement’s custody provision has been presented. No agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the child’s best interest (People ex rel. Wasserberger v Wasserberger, 42 AD2d 93, 95, affd on opn below 34 NY2d 660). Nor is an agreement so contradictory of considered judgment as to determine custody solely upon the basis of the wishes of the young children involved a “‘weighty factor’” for consideration (Martin v Martin, 74 AD2d 419, 426, supra). Thus, Nehra’s phrase “absence of extraordinary circumstances” is to be read as “absence of countervailing circumstances on consideration of the totality of circumstances,” not that some particular, sudden or unusual event has occurred since the prior award. The standard ultimately to be applied remains the best interests of the child when all of the applicable factors are considered, not whether there exists one or more circumstances that can be denominated extraordinary.

An additional reason for so holding in the instant case exists in rule 699.9 of the Appellate Division, Second Department, to which the decree in the instant case is subject. Custody decrees remain subject to modification because the governing statute so provides (Goldman v Goldman, 282 NY 296, 304, supra; Domestic Relations Law, §240; Siegel, 1964 Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law, §240, 1981-1982 Pocket Part, p 165; Ann., 73 ALR2d 1444). Rule 699.9 expressly states that “as to support, custody and visitation, no such [separation] agreement or stipulation is binding” (22 NYCRR 699.9 [f] [4]) and requires, as earlier noted, that the judgment contain the provision {id., Approved Forms, J13) that the court retains jurisdiction for the purpose of making such further custody decree “as it finds appropriate under the circumstances existing at the time application for that purpose is made to it” (italics supplied). Such a modification is, as already noted, permitted by law when authorized by the totality of *96circumstances, including the existence of the prior decree. Moreover, the language of the rule makes indelibly clear that it is the circumstances existing at the time of the application for change that governs whether a change should be made, whether or not any of them can be characterized as extraordinary. This, of course, does not mean that a matrimonial court in the Second Department has the authority to change custody simply because change is requested, but that it has the discretion to do so when the totality of circumstances, including the existence of the prior award, warrants its doing so in the best interests of the child.

It thus appears that the standard applied by the courts below was not legally incorrect. Moreover, the record supports the determination of the courts below that the change of custody was warranted by the lesser concern of the mother for the emotional well-being of her children than for her own life style demonstrated after the original award was made, particularly in light of the short period of time it had been in existence when the application for modification was made and the fact that the custody provisions of the divorce judgment were based on the agreement of the parties rather than plenary consideration by the trial court.

For the foregoing reasons, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur; Judge Jones taking no part.

Order affirmed.

Appeal from a judgment of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered April 11, 2005 in a divorce action. The judgment, inter alia, awarded the parties joint custody of their daughter.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the provision with respect to alternate year decision-making authority and as modified the judgment is affirmed without costs.

Memorandum: Although we recognize that an award of joint custody is reserved for “relatively stable, amicable parents behaving in mature civilized fashion” (Braiman v Braiman, 44 NY2d 584, 589-590 [1978]), we nevertheless conclude that Supreme Court properly granted the parties joint custody of their daughter in this contested custody matter. The record establishes that, with professional guidance, the parties established a joint custodial arrangement during the pendency of the matrimonial action. Both parties have shown that they are capable of placing the well-being of their daughter above *1217their own needs. “[T]he final consideration for the court ultimately remains the best interests of the child” (Matter of Ammann v Ammann, 209 AD2d 1032, 1033 [1994]) and, here, it is in the best interests of the parties’ daughter that the joint arrangement continue, despite the fact that each party sought sole custody. However, the provision that, in the event the parties are unable to agree on issues concerning their daughter, decision-making authority be given to one parent in even-numbered years and the other parent in odd-numbered years is both arbitrary and contrary to the concept of joint parental decision-making and must be vacated. We therefore modify the judgment accordingly. Present—Kehoe, J.P., Gorski, Martoche, Smith and Pine, JJ.

Chief Judge Breitel.

Petitioner is the natural mother of Gina Marie Bennett, now an eight-year-old girl. The mother in *544this proceeding seeks custody of her daughter from respondent, to whom the child had been entrusted since just after birth. Family Court ruled that, although the mother had not surrendered or abandoned the child and was not unfit, the child should remain with the present custodian, a former schoolmate of the child’s grandmother. The Appellate Division reversed, one Justice dissenting, and awarded custody to the mother. Respondent custodian appeals.1

The issue is whether the natural mother, who has not surrendered, abandoned, or persistently neglected her child, may, nevertheless, be deprived of the custody of her child because of a prolonged separation from the child for most of its life.

There should be a reversal and a new hearing before the Family Court. The State may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances. If any of such extraordinary circumstances are present, the disposition of custody is influenced or controlled by what is in the best interest of the child. In the instant case, extraordinary circumstances, namely, the prolonged separation of mother and child for most of the child’s life, require inquiry into the best interest of the child. Neither court below examined sufficiently into the qualifications and backgrounds of the mother and the custodian to determine the best interest of the child. Consequently a new hearing should be held.

Some eight years ago, the mother, then 15 years old, unwed, and living with her parents, gave birth to the child. Under pressure from her mother, she reluctantly acquiesced in the transfer of the newborn infant to an older woman, Mrs. Jeffreys, a former classmate of the child’s grandmother. The quality and quantity of the mother’s later contacts with the child were disputed. The Family Court found, however, that there was no statutory surrender or abandonment. Pointedly, the Family Court found that the mother was not unfit. The Appellate Division agreed with this finding.

There was evidence that Mrs. Jeffreys intended to adopt the child at an early date. She testified, however, that she could not afford to do so and admitted that she never took formal steps to adopt.

*545The natural mother is now 23 and will soon graduate from college. She still lives with her family, in a private home with quarters available for herself and the child. The attitude of the mother’s parents, however, is changed and they are now anxious that their daughter keep her child.

Mrs. Jeffreys, on the other hand, is now separated from her husband, is employed as a domestic and, on occasion, has kept the child in a motel. It is significant that Mrs. Jeffreys once said that she was willing to surrender the child to the parent upon demand when the child reached the age of 12 or 13 years.

At the outset, it is emphasized that not involved is an attempted revocation of a voluntary surrender to an agency or private individual for adoption (see Social Services Law, § 383, subd 5; People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185, cert den 404 US 805; Domestic Relations Law, § 115-b, subd 3, par [d], cl [v]). Nor is abandonment involved (see, e.g., Matter of Malik M., 40 NY2d 840). Nor does the proceeding involve an attempted permanent termination of custody (Family Ct Act, § 614, subd 1; § 631; Matter of Anonymous [St. Christopher’s Home], 40 NY2d 96; Matter of Orlando F., 40 NY2d 103; Matter of Ray A. M., 37 NY2d 619). Nor is there involved the temporary placement into foster care by an authorized agency which is obliged to conduct an investigation and to determine the qualification of foster parents before placement of a child in need of such care (see Social Services Law, § 383, subds 1-3; Matter of Jewish Child Care Assn. of N. Y. [Sanders], 5 NY2d 222, 224-225; State of New York ex rel. Wallace v Lhotan 51 AD2d 252, app dsmd 39 NY2d 743).

Instead, this proceeding was brought by an unwed mother to obtain custody of her daughter from a custodian to whom the child had been voluntarily, although not formally, entrusted by the mother’s parents when the mother was only 15 years old. Thus, as an unsupervised private placement, no statute is directly applicable, and the analysis must proceed from common-law principles.

Absent extraordinary circumstances, narrowly categorized, it is not within the power of a court, or, by delegation of the Legislature or court, a social agency, to make significant decisions concerning the custody of children, merely because it could make a better decision or disposition. The State is *546parens patriae and always has been, but it has not displaced the parent in right or responsibility. Indeed, the courts and the law would, under existing constitutional principles, be powerless to supplant parents except for grievous cause or necessity (see Stanley v Illinois, 405 US 645, 651). Examples of cause or necessity permitting displacement of or intrusion on parental control would be fault or omission by the parent seriously affecting the welfare of a child, the preservation of the child’s freedom from serious physical harm, illness or death, or the child’s right to an education, and the like (cf., e.g., Wisconsin v Yoder, 406 US 205, 213-215; Pierce v Society of Sisters, 268 US 510, 535).

The parent has a "right” to rear its child, and the child has a "right” to be reared by its parent. However, there are exceptions created by extraordinary circumstances, illustratively, surrender, abandonment, persisting neglect, unfitness, and unfortunate or involuntary disruption of custody over an extended period of time. It is these exceptions which have engendered confusion, sometimes in thought but most often only in language.

The day is long past in this State, if it had ever been, when the right of a parent to the custody of his or her child, where the extraordinary circumstances are present, would be enforced inexorably, contrary to the best interest of the child, on the theory solely of an absolute legal right. Instead, in the extraordinary circumstance, when there is a conflict, the best interest of the child has always been regarded as superior to the right of parental custody. Indeed, analysis of the cases reveals a shifting of emphasis rather than a remaking of substance. This shifting reflects more the modern principle that a child is a person, and not a subperson over whom the parent has an absolute possessory interest. A child has rights too, some of which are of a constitutional magnitude (cf. Goss v Lopez, 419 US 565, 574; Matter of Winship, 397 US 358, 365; Tinker v Des Moines School Dist., 393 US 503, 506; Matter of Gault, 387 US 1, 47).

Earlier cases, such as People ex rel. Kropp v Shepsky (305 NY 465, 468-469) and People ex rel. Portnoy v Strasser (303 NY 539, 542), emphasized the right of the parent, superior to all others, to the care and custody of the child. This right could be dissolved only by abandonment, surrender, or unfitness. Of course, even in these earlier cases, it was recognized that parental custody is lost or denied not as a moral sanction *547for parental failure, but because "the child’s welfare compels awarding its custody to the nonparent” (People ex rel. Kropp v Shepsky, 305 NY 465, 469, supra).

Although always recognizing the parent’s custodial rights, the concern in the later cases, given the extraordinary circumstances, was consciously with the best interest of the child. Thus, in People ex rel. Anonymous v Anonymous (10 NY2d 332, 335), in acknowledging the "’primacy of parental rights’”, the court pointed out that "it has never been held or suggested that the child’s welfare may ever be forgotten or disregarded” (10 NY2d, at p 335). And in People ex rel. Scarpetta v Spence-Chapin Adoption Serv. (28 NY2d 185, supra), the ultimate consideration, again given extraordinary circumstances, was the best interest of the child (28 NY2d, at pp 192, 193, n 10). Thus, the court held "that the record before us supports the finding by the courts below that the surrender was improvident and that the child’s best interests—moral and temporal—will be best served by its return to the natural mother” (p 194).

Finally, in Matter of Spence-Chapin Adoption Serv. v Polk (29 NY2d 196, 204), the court rejected any notion of absolute parental rights. The court restated the abiding principle that the child’s rights and interests are "paramount” and are not subordinated to the right of parental custody, as important as that right is (p 204). Indeed, and this is key, the rights of the parent and the child are ordinarily compatible, for "the generally accepted view [is] that a child’s best interest is that it be raised by its parent unless the parent is disqualified by gross misconduct” (p 204).

Recently enacted statute law, applicable to related areas of child custody such as adoption and permanent neglect proceedings, has explicitly required the courts to base custody decisions solely upon the best interest of the child (Social Services Law, § 383, subd 5; Domestic Relations Law, § 115-b, subd 3, par [d], cl [v]; Family Ct Act, § 614, subd 1, par [e]; § 631; see Matter of Anonymous [St. Christopher’s Home], 40 NY2d 96, supra; Matter of Orlando F., 40 NY2d 103, supra; Matter of Ray A. M., 37 NY2d 619, 621, supra; cf. Lo Prestí v Lo Presti, 40 NY2d 522). Under these statutes, there is no presumption that the best interest of the child will be promoted by any particular custodial disposition. Only to this limited extent is there a departure from the pre-existing *548decisional rule, which never gave more than rebuttable presumptive status, however strongly, to the parent’s "right”.

Such legislative changes conform, of course, to constitutional limitations. Their purpose, because they involve presumptions, or their negation, is only to implement judicial disposition of evidentiary matters in reconciling the "rights of parents” with the "rights of children” in custody dispositions.

But neither decisional rule nor statute can displace a fit parent because someone else could do a "better job” of raising the child in the view of the court (or the Legislature), so long as the parent or parents have not forfeited their "rights” by surrender, abandonment, unfitness, persisting neglect or other extraordinary circumstance. These "rights” are not so much "rights”, but responsibilities which reflect the view, noted earlier, that, except when disqualified or displaced by extraordinary circumstances, parents are generally best qualified to care for their own children and therefore entitled to do so (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, 204, supra).

Indeed, as said earlier, the courts and the law would, under existing constitutional principles, be powerless to supplant parents except for grievous cause or necessity (see Stanley v Illinois, 405 US 645, 651, supra, in which the principle is plainly stated and stressed as more significant than other essential constitutional rights).

But where there is warrant to consider displacement of the parent, a determination that extraordinary circumstances exist is only the beginning, not the end, of judicial inquiry. Extraordinary circumstances alone do not justify depriving a natural parent of the custody of a child. Instead, once extraordinary circumstances are found, the court must then make the disposition that is in the best interest of the child.

Although the extraordinary circumstances trigger the "best interests of the child” test, this must not mean that parental rights or responsibilities may be relegated to a parity with all the other surrounding circumstances in the analysis of what is best for the child. So, for one example only, while it is true that disruption of custody over an extended period of time is the touchstone in many custody cases, where it is voluntary the test is met more easily but where it is involuntary the test is met only with great difficulty, for evident reasons of humanity and policy.

*549The child’s "best interest” is not controlled by whether the natural parent or the nonparent would make a "better” parent, or by whether the parent or the nonparent would afford the child a "better” background or superior creature comforts. Nor is the child’s best interest controlled alone by comparing the depth of love and affection between the child and those who vie for its custody. Instead, in ascertaining the child’s best interest, the court is guided by principles which reflect a "considered social judgment in this society respecting the family and parenthood” (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, 204, supra). These principles do not, however, dictate that the child’s custody be routinely awarded to the natural parent (see Matter of Benitez v Llano, 39 NY2d 758, 759).

Matter of Benitez v Llano is a particularly good example. In Benitez, there was no termination of the parental right to custody and no finding of parental unfitness or abandonment; nevertheless, the court, acting in the best interest of the child, ruled that the child should remain in the custody of a second cousin. This was because of the extended period of the nonparental custody, the attachment of the child to the custodian, and the child’s imminent attainment of majority.

To recapitulate: intervention by the State in the right and responsibility of a natural parent to custody of her or his child is warranted if there is first a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstance which would drastically affect the welfare of the child. It is only on such a premise that the courts may then proceed to inquire into the best interest of the child and to order a custodial disposition on that ground.

In custody matters parties and courts may be very dependent on the auxiliary services of psychiatrists, psychologists, and trained social workers. This is good. But it may be an evil when the dependence is too obsequious or routine or the experts too casual. Particularly important is this caution where one or both parties may not have the means to retain their own experts and where publicly compensated experts or experts compensated by only one side have uncurbed leave to express opinions which may be subjective or are not narrowly controlled by the underlying facts.

The court’s determination may be influenced by whether *550the child is in the present custody of the parent or the nonparent (see People ex rel. Grament v Free Synagogue Child Adoption Committee, 194 Misc 332, 337 [Botein, J.]). Changes in conditions which affect the relative desirability of custodians, even when the contest is between two natural parents, are not to be accorded significance unless the advantages of changing custody outweigh the essential principle of continued and stable custody of children (cf. Matter of Ebert v Ebert, 38 NY2d 700, 703-704; Obey v Degling, 37 NY2d 768, 770; Dintruff v McGreevy, 34 NY2d 887, 888).

Moreover, the child may be so long in the custody of the nonparent that, even though there has been no abandonment or persisting neglect by the parent, the psychological trauma of removal is grave enough to threaten destruction of the child. Of course, such a situation would offer no opportunity for the court, under the guise of determining the best interest of the child, to weigh the material advantages offered by the adverse parties. As noted earlier, such considerations do riot determine the best interest of the child (see Matter of Gomez v Lozado, 40 NY2d 839, decided herewith, involving a motherless child in the custody of its grandmother for many years and separated from its father for still more years).

Before applying these principles to this case, a factor should be mentioned which, although not here present, often complicates custody dispositions. The resolution of cases must not provide incentives for those likely to take the law into their own hands. Thus, those who obtain custody of children unlawfully, particularly by kidnapping, violence, or flight from the jurisdiction of the courts, must be deterred. Society may not reward, except at its peril, the lawless because the passage of time has made correction inexpedient. Yet, even then, circumstances may require that, in the best interest of the child, the unlawful acts be blinked (see Matter of Lang v Lang, 9 AD2d 401, 408-410, affd 7 NY2d 1029).

In this case, there were extraordinary circumstances present, namely, the protracted separation of mother from child, combined with the mother’s lack of an established household of her own, her unwed state, and the attachment of the child to the custodian. Thus, application of the principles discussed required an examination by the court into the best interest of the child.

In reaching its conclusion that the child should remain with the nonparent custodian, the Family Court relied primarily *551upon the seven-year period of custody by the nonparent and evidently on the related testimony of a psychologist. The court did not, however, adequately examine into the nonparent custodian’s qualifications and background. Also, the court apparently failed to consider the fact that, absent a finding of abandonment or neglect by the mother, or her consent, the nonparent cannot adopt the child (see Matter of Anonymous [St. Christopher’s Home], 40 NY2d 96, 101-102, supra). Family Court’s disposition, if sustained, would therefore have left the child in legal limbo, her status indefinite until the attainment of her majority. For a single example, a question could arise as to whose consent, the parent’s or the nonparent custodian’s, would be necessary for the child to marry while underage (see Domestic Relations Law, § 15, subd 2 [consent of "parent” or "guardian” required]). A similar question could arise with respect to many situations affecting employment and entry into occupations, an adoption, and any other matters requiring the consent of a parent or legal guardian (e.g., General Obligations Law, § 3-105, subd 2, par c; Education Law, § 3230, subd 3, par b; Domestic Relations Law, § 111, subds 2-3).

On the other hand, the Appellate Division, in awarding custody to the mother, too automatically applied the primary principle that a parent is entitled to the custody of the child. This was not enough if there were extraordinary circumstances, as indeed there were. Other than to agree with Family Court that she was not "unfit”, the court did not pursue a further analysis. Most important, no psychological or other background examination of the mother had ever been obtained. There was, therefore, no consideration of whether the mother is an adequate parent, in capacity, motivation, and efficacious planning. Nevertheless, the Appellate Division determination may well be right.

Thus, a new hearing is required because the Family Court did not examine enough into the qualifications and background of the long-time custodian, and the Appellate Division did not require further examination into the qualifications and background of the mother. Each court was excessive in applying abstract principles, a failing, however important those principles are.

At the cost of some repetition, perhaps unnecessary, it should be said, given the extraordinary circumstances present in this case, in determining the best interest of the child, the age of the child, and the fact and length of custody by the *552nonparent custodian are significant. Standing alone, these factors may not be sufficient to outweigh the mother’s "right” to custody. However, taken together with the testimony of the psychologist that return to her mother would be "very traumatic for the child”, the relatively lengthy period of nonparent custody casts the matter in sufficient doubt with respect to the best interest of the child to require a new hearing. At this hearing, the mother’s adequacy may be explored and positively established, and if so, in connection with the parent’s past visiting it might well weight the balance in her favor. Then too, the circumstances and environment 6f the custodian, the stability of her household, her inability to adopt, her age, and any other circumstances bearing upon the fitness or adequacy of a child’s custodian over the whole period of childhood, are all relevant.

In all of this troublesome and troubled area there is a fundamental principle. Neither law, nor policy, nor the tenets of our society would allow a child to be separated by officials of the State from its parent unless the circumstances are compelling. Neither the lawyers nor Judges in the judicial system nor the experts in psychology or social welfare may displace the primary responsibility of child-raising that naturally and legally falls to those who conceive and bear children. Again, this is not so much because it is their "right”, but because it is their responsibility. The nature of human relationships suggests overall the natural workings of the child-rearing process as the most desirable alternative. But absolute generalizations do not fulfill themselves and multifold exceptions give rise to cases where the natural workings of the process fail, not so much because a legal right has been lost, but because the best interest of the child dictates a finding of failure.2

Accordingly, the order of the Appellate Division should be *553reversed, without costs, and the proceeding remitted to Family Court for a new hearing.

Fuchsberg, J.

(concurring). I welcome the express recognition the court today gives to the concept that, under evolving child custody law in New York, circumstances other than the statutory and traditional ones of abandonment, surrender, permanent neglect and unfitness may form the basis for termination of a biological parent-child relationship, and I agree with the result it reaches. However, in concurring, the strength of my conviction that even greater movement in this area of the law is long overdue requires me to indicate the nature of some of my reservations.

Security, continuity and "long-term stability” (Matter of Ebert v Ebert, 38 NY2d 700, 704) in an on-going custodial relationship, whether maintained with a natural parent or a third party, are vital to the successful personality development of a child (see Foster, Adoption and Child Custody: Best Interests of the Child?, 22 Buffalo L Rev 1, 12-13, and authorities cited therein). Indeed, that is one of the soundest justifications for the priority which our society accords natural parents when the continuance of their status as parents is under legal attack.

The same considerations, however, it seems to me, dictate that, where a natural parent has affirmatively brought about or acquiesced in the creation of a secure, stable and continuing parent-child relationship with a third party who has become the psychological parent,1 there comes a point where the "rebuttable presumption” which, absent such a change, is employed to favor the natural parent, disappears, as evidentiary presumptions usually do in the face of facts. Accordingly, when that point is reached, the determination of whether the original parental relationship has terminated should proceed without such bolstering of the natural parent’s position vis-ávis that of the child, the custodial parent or any other proper parties in interest. Generally speaking, when displaced by a state of facts contraindicating their further utility in a fact-finding setting, presumptions can only get in the way of substance, and, as a practical matter, when that happens, the *554less they are relied upon the better. I would, therefore, that we had spelled out an evidentiary balance consistent with these principles for application in custody litigation, always bearing in mind that each custody case, dealing as it does with emotion-laden and highly sensitive human relationships, is unique.2

Further, I do not agree that inquiry into the best interests of a child must await a determination that, because of surrender, abandonment, neglect or "extraordinary” circumstances, a natural parent’s "rights” to a child are at an end. Willynilly, concern for the best interests of the child must play a central and unavoidable role in the resolution of such questions (cf. Matter of Gomez v Lozado, 40 NY2d 839 [decided herewith]).

Moreover, even under prior law, when only a finding of abandonment, surrender or neglect could defeat the presumption in favor of natural parents, the best interests of the child were involved from the very outset. Unfitness, for instance, cannot be determined abstractly or in isolation, but only relative to the psychological needs of a particular child, given its age, its mental health, its physical well-being and the like. And the very same conduct which constitutes clear neglect towards one child might not be so at all with regard to another child whose level of independence and emotional requirements are different. It follows that evidence offered to show that the State must intervene in a natural parent-child •relationship is, by its very nature, evidence as to the best interests of the child. In short, termination or intervention, on the one hand, and best interests, on the other, are not discrete matters. Pragmatically, they are closely interrelated. Proof of one overlaps the other and I do not believe they should be considered separately.

*555I would add too that I am not completely convinced that there was not a sufficient basis for the decision of the Trial Judge, despite the unfortunate limitation on resources available to the Family Court and, often, the parties who appear before it (see Gordon, Terminal Placements of Children and Permanent Termination of Parental Rights: The New York Permanent Neglect Statute, 46 St John’s L Rev 215, 256, n 204, and citations therein). Among other things, the trial court here fully heard out both Mrs. Jeffreys and Ms. Bennett, conducted an in camera interview with the child following which he concluded that she was a "happy, well-adjusted young girl” who "was most adamant about the fact that she wished to continue residing with Mrs. Jeffreys”, and, in aid of his determination, sought and had the benefit of a formal psychological study. Nevertheless, since painstaking fact finding is so far superior to presumptions and assumptions, and, therefore, should be encouraged, I join in the decision to remit this case for further information-gathering, noting, in doing so, that it is clear that it should not be controlling that Ms. Bennett, the natural mother, because she is now pursuing collegiate studies may at some time in the future be more likely to afford greater creature comforts for the child than is Mrs. Jeffreys, whose modest position on the vocational social scale did not prevent her from undertaking to act as surrogate mother and thus to form psychological bonds between the child and herself. And, needless to say, any profession by Mrs. Jeffreys that she would have been willing to return the child to her biological mother when she was older if it were in the best interests of the child for her to do so would be an evidence of altruistic maternal concern that would win the approval of every sound practitioner of child psychiatry from King Solomon on.

Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur with Chief Judge Breitel; Judge Fuchsberg concurs in result in a separate opinion.

Order reversed, etc.

*866OPINION OF THE COURT

H. Patrick Leis, III, J.

It is ordered that plaintiff is granted shared custody of J.M.; it is further ordered that plaintiff is granted visitation with J.M. every Wednesday for dinner, a week-long school recess and two weeks out of the summer as delineated in this decision and judgment.

In this matter, plaintiff Dawn M., who is the non-biological, non-adoptive parent, asks the court to grant her “tri-custody” of defendant husband Michael M.’s 10-year-old biological son J.M.1 After denying defendant’s motion for summary judgment,2 this court ordered a trial to determine custody and visitation rights of the parties regarding J.M.

The facts at trial established the following:

Plaintiff and defendant were married on July 9, 1994. After being unsuccessful at attempts to have a child, the parties went to a fertility doctor. The plaintiff was artificially inseminated with defendant’s sperm and conceived a child. Unfortunately, that child was miscarried at 10 weeks gestation.

In April of 2001, plaintiff met Audria G. and they became close friends. Audria and her boyfriend moved into an apartment downstairs from plaintiff and defendant. When Audria’s boyfriend moved out, Audria moved upstairs with plaintiff and defendant. Sometime in 2004, the relationship between plaintiff, defendant and Audria changed and the three began to engage in intimate relations.

As time went on, Audria, plaintiff and defendant began to consider themselves a “family” and decided to have a child together. The parties and Audria went to the fertility doctor previously utilized by plaintiff and defendant with the hope that Audria could be artificially inseminated with defendant’s sperm. The fertility doctor, however, refused to artificially inseminate Audria because she was not married to defendant. *867Thereafter, the parties and Audria decided they would try to conceive a child naturally by defendant and Audria engaging in unprotected sexual relations. The credible evidence establishes that it was agreed, before a child was conceived, that plaintiff, Audria and defendant would all raise the child together as parents.

Audria became pregnant and J.M. was born on January 25, 2007. The evidence establishes that plaintiff’s medical insurance was used to cover Audria’s pregnancy and delivery, and that plaintiff accompanied Audria to most of her doctor appointments. For more than 18 months after J.M.’s birth, defendant, plaintiff and Audria continued to live together. Audria and plaintiff shared duties as J.M.’s mother including taking turns getting up during the night to feed J.M. and taking him to doctor visits.

As time went on, however, the relationship between defendant and plaintiff became strained. In October of 2008, Audria and plaintiff moved out of the marital residence with J.M. A divorce action was commenced by plaintiff against defendant in 2011. Plaintiff testified credibly that after the divorce action was commenced, defendant no longer considered her to be J.M.’s parent. Prior to this divorce, a custody case was commenced by defendant against Audria. Defendant and Audria settled their custody proceeding by agreeing to joint custody; residential custody with Audria and liberal visitation accorded to defendant.3 The plaintiff still resides with Audria and J.M., and sees J.M. on a daily basis. She testified that she brought this action to assure continued visitation and to secure custody rights for J.M. because she fears that without court-ordered visitation and shared custody, her ability to remain in J.M.’s life would be solely dependent upon obtaining the consent of either Audria or the defendant.

The court finds plaintiff’s love for J.M. evident from her actions, testimony and demeanor on the stand. Indeed, during her testimony, plaintiff beamed whenever she spoke of J.M., including her earliest involvement in his life during Audria’s pregnancy. The court finds credible the testimony of Audria and plaintiff that J.M. was raised with two mothers and that he continues to the present day to call both “mommy.” The court does not find credible defendant’s claim that he called plaintiff by her first name and never referred to her as *868“mommy” in front of J.M. The court finds that in all respects, during the first 18 months of J.M.’s life when defendant, plaintiff and Audria all lived together, and thereafter, plaintiff acted as a joint mother with Audria and that they all taught the child that he has two mothers. In fact, the credible evidence establishes that when J.M. had an ear operation at age two, the defendant told the nurse that both plaintiff and Audria were J.M.’s mother so that both could be with him in the recovery room.

Moreover, the in camera interview conducted by the court with J.M. clearly establishes that J.M. considers both plaintiff and Audria his mothers. When asked to distinguish them, he refers to Audria as “mommy with the orange truck” and to plaintiff as “mommy with the grey truck.”4 He makes no distinction based on biology. J.M. is a well adjusted 10-year-old boy who loves his father and his two mothers. He knows nothing about this action. He has no idea that his father opposes tricustody and court-ordered visitation with plaintiff.5 The in camera with J.M. leaves no doubt that J.M. considers both plaintiff and Audria to be equal “mommies” and that he would be devastated if he were not able to see plaintiff. The interview with J.M. also clearly shows that he enjoys his present living situation and would not want it altered in any way.

Although not a biological parent or an adoptive parent, plaintiff argues that she has been allowed to act as J.M.’s mother by both Audria and defendant. She has always lived with J.M. and J.M. has known plaintiff as his mom since his birth. Plaintiff asserts that the best interest of J.M. dictates that she be given shared legal custody of J.M. and visitation with him. J.M.’s biological mother Audria strongly agrees. Plaintiff argues, along with the child’s attorney, that defendant should be estopped from opposing this application because he has created and fostered this situation by voluntarily agreeing, before the child was conceived, to raise him with three parents. And, further, that the defendant has acted consistent with this agreement by allowing the child to understand that he has two mothers.

Pursuant to Domestic Relations Law § 70, a parent may apply to the court for custody based solely upon what is for the best interest of the child, and what will promote his welfare *869and happiness. Domestic Relations Law § 240 also requires that in any proceeding for divorce, the court “shall enter [a custody order] . . . having regard to the circumstances of the case and of the respective parties and to the best interests of the child.” The Court of Appeals in Brooke S.B. stressed that its decision only addressed the ability of a person who was not a biological or adoptive parent to establish standing as a parent to petition for custody and visitation, and that the ultimate determination of whether to grant those rights rests in the sound discretion of trial courts in determining the best interests of the child (28 NY3d at 28).6

Similarly, in determining shared legal custody, J.M.’s best interests control (see Braiman v Braiman, 44 NY2d 584, 589 [1978]). Such an arrangement “reposes in both parents a shared responsibility for and control of a child’s upbringing” (id.). As the Court in Braiman noted, “children are entitled to the love, companionship, and concern of both parents . . . [and] a joint award affords the otherwise noncustodial parent psychological support which can be translated into a healthy environment for the child” (id.). Joint custody is usually encouraged primarily as a voluntary alternative when the parents are amicable (Braiman, 44 NY2d at 589). When it is a court-ordered arrangement upon embittered parents, it only promotes familial chaos (id. at 590). That is not the case here. Here, the evidence establishes that the plaintiff acts as a de facto joint custodial parent with defendant and Audria and shares in making all major decisions in J.M.’s life.

Based on the evidence adduced at trial, including the demeanor and credibility of all three witnesses, the in camera interview and the factual findings made by this court, it is clear that the best interests of J.M. will be served by granting plaintiff’s application for shared legal custody with defendant. Plaintiff and defendant have raised J.M. in a loving environment as evidenced by the fact that he does not know that the defendant opposes custody and court-ordered visitation with plaintiff. They clearly do not present as so embattled and embittered that they will not work together to put J.M.’s needs *870first. J.M. needs a continuing relationship with the plaintiff as his mother and that relationship cannot be left to depend on the consent or whim of either his biological mother or father. Anything less will promote great hardship and suffering for J.M. This court concludes based on the evidence that plaintiff, defendant and Audria can and will get along as they have in the past, to maintain J.M.’s psychological stability and to act in his best interest, and that they will be able to cooperate in making major decisions in J.M.’s life such as health, education and welfare as they have done for his entire life.

Such joint legal custody will actually be a tri-custodial arrangement as Audria and defendant already share joint legal custody. As it appears from Audria’s testimony that she wholeheartedly supports such an arrangement, this court finds no issue with regards to Audria’s rights in granting this relief. Indeed, tri-custody is the logical evolution of the Court of Appeals’ decision in Brooke S.B., and the passage of the Marriage Equality Act and Domestic Relations Law § 10-a which permits same-sex couples to marry in New York.

Regarding visitation, plaintiff requests that she be given one weekend a month and that such weekend can be carved out of defendant’s time with J.M. (he presently sees J.M. from Saturday afternoon to Sunday late afternoon, three times a month). To grant plaintiff’s request at defendant’s expense, however, would be inappropriate as plaintiff presently lives with J.M. and sees him regularly when defendant does not have visitation. Additionally, J.M. enjoys his time with his father. Taking one of defendant’s three weekends each month would significantly limit J.M.’s visitation with defendant and could have a detrimental impact on his relationship with his father. The court does recognize plaintiff’s need and right to time alone with J.M. and, accordingly, will grant plaintiff Wednesday night visitation with J.M. for dinner pursuant to a schedule to be established by plaintiff with input from Audria whose time with J.M. will be impacted by this court-ordered visitation. Lastly, plaintiff also requests one week-long school recess visitation each year and two weeks of visitation each summer. The court grants this relief and directs that all parties cooperate to determine which school recess and which two weeks out of the summer will belong to plaintiff.

In sum, plaintiff, defendant and Audria created this unconventional family dynamic by agreeing to have a child together and by raising J.M. with two mothers. The court therefore *871finds that J.M.’s best interests cry out for an assurance that he will be allowed a continued relationship with plaintiff. No one told these three people to create this unique relationship. Nor did anyone tell defendant to conceive a child with his wife’s best friend or to raise that child knowing two women as his mother. Defendant’s assertion that plaintiff should not have legal visitation with J.M. is unconscionable given J.M.’s bond with plaintiff and defendant’s role in creating this bond. A person simply is responsible for the natural and foreseeable consequences of his or her actions especially when the best interest of a child is involved. Reason and justice dictate that defendant should be estopped from arguing that this woman, whom he has fostered and orchestrated to be his child’s mother, be denied legal visitation and custody. As a result of the choices made by all three parents, this 10-year-old child to this day considers both plaintiff and Audria his mothers. To order anything other than joint custody could potentially facilitate plaintiff’s removal from J.M.’s life and that would have a devastating consequence to this child. Accordingly, plaintiff is granted shared legal tri-custody and visitation as outlined above.

This court retains jurisdiction and therefore should circumstances change, either party or Audria may make an application to modify this decision and judgment of the court.

Keating, J.

A father brings this proceeding to obtain custody of three children who, by the terms of a separation agreement subsequently incorporated into a divorce decree, were in their mother’s custody. Following a hearing, the trial court transferred custody to the father, with visitation rights to the mother.

Although the Appellate Division determined that two errors had occurred during the trial, it nevertheless affirmed because the overwhelming weight of the evidence favored the father. Since we do not find any error which can be said to be prejudicial as a matter of law, the order of the Appellate Division should be affirmed. We would, however, express our disagreement with the conclusion of the Appellate Division that it was error for the trial court, over objection, to interview the children in the absence of counsel.

Appellant argues that it was a deprivation of the fundamental rights of the parties for the trial court to have a confidential interview with the children without the parties’ consent. It is contended such action permits a decision based upon “ secret evidence ”. We cannot accept the argument, persuasive as it might seem at first, because it ignores the fact that, in a custody *272proceeding arising out of a dispute between divorced parents, the first concern of the court is and must be the welfare and the interests of the children (Domestic Relations Law, § 70). Their interests are paramount. The rights of their parents must, in the case of conflict, yield to that superior demand.

It requires no great knowledge of child psychology to recognize that a child, already suffering from the trauma of a ¡broken home, should not be placed in the position of having its relationship with either parent further jeopardized by having to publicly relate its difficulties with them or be required to openly choose between them. The trial court however, if it is to obtain a full understanding of the effect of parental differences on the child, as well as an honest expression of the child’s desires and attitudes, will in many cases need to interview the child. There can be no question that an interview in private will limit the psychological danger to the child and will also be far more informative and worthwhile than the traditional procedures of the adversary system — an examination of the child under oath in open court.

The burden on a Judge when he acts as parens patries is perhaps the most demanding which he must confront in the course of his judicial duties. Upon his wisdom, insight and fairness rest the future happiness of his wards. The procedures of the custody proceeding must, therefore, be molded to serve its primary purpose, and limited modifications of the traditional requirements of the adversary system must be made, if necessary.

(Kesseler v. Kesseler, 10 N Y 2d 445; People ex rel. Fields v. Kaufmann, 9 A D 2d 375.) The test is whether the .deviation will on the whole benefit the child by obtaining for the Judge significant pieces of information he needs to make the soundest possible decision.

The trial court here concluded that the only method by which it might avoid placing an unjustifiable emotional burden on the three children and, at the same time, enable them to speak freely and candidly concerning their preferences was to assure them that their confidences would be respected. This could only be done in the absence of counsel, and we see no error or abuse of discretion in the procedure followed by the trial court.

*273There is language in Kesseler v. Kesseler (10 N Y 2d 445, 451, supra) which, by implication, would support the position that an interview in the absence of counsel is improper. The court in Kesseler was dealing with evidence obtained from third parties, principally professional reports. In such a situation the problem presented was how the courts can secure vitally important material, otherwise perhaps not available at all, and, at the same time, be certain of the truthfulness of the information obtained. The conflict was resolved in favor of accuracy. We held that professional reports and independent investigations by the Trial Judge entail too many risks of error to permit their use without the parties’ consent. More important, the interest of the children themselves requires that the accuracy of these professional reports be established and that there be an opportunity to explain or rebut material contained in the reports. (See Use of Extra-Record Information in Custody Cases, 24 U. Chi. L. Rev. 349, 356.) However, the added emotional problems raised by the use of adversary procedures with respect to interviewing children as to their preferences was not considered in Kesseler, since it was unnecessary to do so to resolve the issues there presented.

In approving the procedure followed by the trial court here, we do not gainsay that there are grave risks involved in these private interviews. A child whose home is or has been torn apart is subjected to emotional stresses that may produce completely distorted images of its parents and its situation. Also its feelings may be transient indeed, and the reasons for its preferences may indicate that no weight should be given the child’s choice. Without a full background on the family and the child, these interviews can lead the most conscientious Judge astray.

The dangers, however, can be minimized. We are confident that the Trial Judges recognize the difficulties and will not use any information, which has not been previously mentioned and is adverse to either parent, without in some way checking on its accuracy during the course of the open hearing. (Cf. Knapp v. Knapp, 21 A D 2d 761.) The entire issue is a most delicate one, but in weighing the competing considerations, we are convinced that the interests of the child will be best served by *274granting to the trial court in a custody proceeding discretion to interview the child in the absence of its parents or their counsel.

The order should be affirmed, without costs.

Chief Judge Fuld> and Judges Burke, Scileppi, Bergan, Brbitbl and Jasen concur.

Order affirmed.

OPINION OF THE COURT

Titone, J.

In each of these appeals, a divorced spouse who was previ*732ously granted custody of the couple’s minor offspring seeks permission to move away from the area in which the noncustodial spouse resides. Both noncustodial spouses oppose the move, contending that it would significantly reduce the access to the children that they now enjoy. Their respective appeals from the Appellate Division order and the Family Court judgment authorizing the requested moves raise significant questions regarding the scope and nature of the inquiry that should be made in cases where a custodial parent proposes to relocate and seeks judicial approval of the relocation plan.

L

Matter of Tropea v Tropea

The parties in this case were married in 1981 and have two children, one born in 1985 and the other in 1988. They were divorced in 1992 pursuant to a judgment that incorporated their previously executed separation agreement. Under that agreement, petitioner mother, who had previously been the children’s primary caregiver, was to have sole custody of the children and respondent father was granted visitation on holidays and "at least three * * * days of each week.” Additionally, the parties were barred from relocating outside of Onondaga County, where both resided, without prior judicial approval.

On June 3, 1993, petitioner brought this proceeding seeking changes in the visitation arrangements and permission to relocate with the children to the Schenectady area. Respondent opposed the requested relief and filed a cross petition for a change of custody. At the ensuing hearing, petitioner testified that she wanted to move because of her plans to marry an architect who had an established firm in Schenectady. According to petitioner, she and her fiancé had already purchased a home in the Schenectady area for themselves and the Tropea children and were now expecting a child of their own. Petitioner stated that she was willing to cooperate in a liberal visitation schedule that would afford respondent frequent and extended contact and that she was prepared to drive the children to and from their father’s Syracuse home, which is about two and a half hours away from Schenectady. Nonetheless, as all parties recognized, the distance between the two homes made midweek visits during the school term impossible.

Respondent took the position that petitioner’s "need” to move was really the product of her own life-style choice and *733that, consequently, he should not be the parent who is "punished” with the loss of proximity and weekday contact. Instead, respondent proposed that he be awarded custody of the children if petitioner chose to relocate. To support this proposal, respondent adduced evidence to show that he had maintained frequent and consistent contact with his children at least until June of 1993, when the instant proceeding was commenced. He had coached the children’s football and baseball teams, participated in their religion classes and had become involved with his older son’s academic education during the 1992-1993 school year. However, there was also evidence that respondent harbored a continuing bitterness toward petitioner which he had verbalized and demonstrated to the children in a number of inappropriate ways. Respondent admitted being bitter enough to have called petitioner "a tramp” and "a low-life” in the children’s presence and, in fact, stated that he saw nothing wrong with this conduct, although he acknowledged that it had a negative effect on the children. Respondent’s mother confirmed that he had spoken negatively about petitioner in the children’s presence and that this behavior had not been helpful to the children.

Following the hearing, the presiding Judicial Hearing Officer (JHO) denied petitioner’s request for permission to relocate. Applying what he characterized as "a more restrictive view of relocation,” the JHO opined that whenever a proposed move "unduly disrupts or substantially impairs the [noncustodial parent’s] access rights to [the] children,” the custodial spouse seeking judicial consent must bear the burden of demonstrating "exceptional circumstances” such as a "concrete economic necessity.” Applying this principle to the evidence before him, the JHO found that petitioner’s desire to obtain a "fresh start” with a new family was insufficient to justify a move that would "significantly impact upon” the close and consistent relationship with his children that respondent had previously enjoyed.

On petitioner’s appeal, however, the Appellate Division reversed, holding that petitioner had made the necessary showing that the requested relocation would not deprive respondent of "regular and meaningful access to his children.” (212 AD2d 1050.) Further, the Court noted, petitioner’s proposed visitation schedule afforded respondent the opportunity for frequent and extended contact with his children. Finally, the Court found that the move would be in the best interests of the children. Accordingly, the Court ruled that petitioner should be *734permitted to move to Schenectady and remitted the matter to Family Court for the establishment of an appropriate visitation schedule. The final Family Court judgment from which respondent appeals awards respondent substantial weekend, summer and vacation visitation in accordance with the Law Guardian’s recommended schedule.1 Matter of Browner v Ken-ward

The parties to this proceeding were married in August of 1983 and had a son three years later. After marital discord led the parties to separate, they executed a stipulation of settlement and agreement in January of 1992 which gave petitioner mother physical custody of the couple’s child and gave respondent father liberal visitation, including midweek overnight visits and alternating weekends. Under the stipulation, respondent was to remain in the marital residence, which was located in "White Plains, New York, and petitioner and the parties’ son were to live with petitioner’s parents in nearby Purchase. Petitioner was required to seek prior approval of the court if she intended to move more than 35 miles from respondent’s residence. The stipulation was incorporated but not merged in the parties’ divorce judgment, which was entered in June of 1992.

In October of 1992, petitioner brought the present proceeding for permission to relocate with the couple’s child to Pitts-field, Massachusetts, some 130 miles from respondent’s Westchester County home. Petitioner requested this relief because her parents were moving to Pittsfield and she wished to go with them. Respondent opposed the application, contending that he was a committed and involved noncustodial parent and that the proposed move would deprive him of meaningful contact with his son.

A hearing was conducted over a period of several months. The hearing evidence disclosed that petitioner’s parents had been considering moving for some time and had made the final decision to do so in September of 1992, coinciding fairly closely with the loss of petitioner’s job. Petitioner testified that she had tried to find work in New York but was unable to do so. She further testified that her prospects of finding affordable housing in the Purchase area were bleak. She ultimately lo*735coted a marketing job in Pittsfield that would give her enough income to rent a home of her own in that area. Petitioner had also investigated the facilities for children in Pittsfield and had found a suitable school and synagogue for her son.

An additional motivating factor for petitioner was the emotional support and child care that she received from her parents and that she expected to receive from her extended family in Pittsfield. According to the evidence, petitioner was somewhat dependent on her parents for financial and moral support, and petitioner’s son had become especially close to his grandparents after his own parents had separated. Further, the boy had a long-standing close relationship with his Pitts-field cousins.

Respondent argued that permission for the move should be denied because it would significantly diminish the quantity and quality of his visits with his child. Respondent noted that the move would eliminate the midweek visits that he had previously enjoyed as well as his opportunity to participate in the child’s daily school, sports and religious activities. Accordingly, respondent argued, petitioner’s proposed relocation to Pitts-field would deprive him of meaningful access to his child.

The Family Court found petitioner’s argument that she was unable to secure employment and new housing within the Westchester area to be less than convincing. The court further found that respondent had been "vigilant” in visiting his son and was "sincerely interested in guiding and nurturing [the] child.” Nonetheless, the court ruled in petitioner’s favor and authorized the proposed move, granting respondent liberal visitation rights. In so ruling, the court noted that the move would not deprive respondent of meaningful contact with his son and that, in light of the psychological evidence that had been adduced, the move would be in the child’s best interests. With respect to the best-interests question, the court stated that the parents’ separation from each other would reduce the bickering that was causing the child difficulty and would enable the child to have the healthy peer relationships that he needed. Additionally, the emotional advantages that petitioner would realize from proximity to her parents would ultimately enhance the child’s emotional well being. On respondent’s appeal, the Appellate Division affirmed, stating only that "the relocation did not deprive [respondent] of regular and meaningful access to the child” and, thus, petitioner was "not required to show exceptional circumstances to justify relocation.” (213 AD2d 400, 401.) This Court subsequently granted respondent leave to appeal.

*736IL

Relocation cases such as the two before us present some of the knottiest and most disturbing problems that our courts are called upon to resolve. In these cases, the interests of a custodial parent who wishes to move away are pitted against those of a noncustodial parent who has a powerful desire to maintain frequent and regular contact with the child. Moreover, the court must weigh the paramount interests of the child, which may or may not be in irreconcilable conflict with those of one or both of the parents.

Because the resolution of relocation disputes is ordinarily a matter entrusted to the fact-finding and discretionary powers of the lower courts, our Court has not had frequent occasion to address the question. We discussed the issue in general terms in Weiss v Weiss (52 NY2d 170, 174-175), in which we recognized the importance of continued regular and frequent visitation between the child and the noncustodial parent and stated that "absent exceptional circumstances * * * appropriate provision for visitation or other access by the noncustodial parent follows almost as a matter of course” (citing Strahl v Strahl, 66 AD2d 571, affd 49 NY2d 1036). We revisited the area a year later in Daghir v Daghir (56 NY2d 938), but the majority memorandum in that case merely commented on the trial court’s failure to separately consider the child’s best interests and did not otherwise elucidate the proper standard to be used in assessing requests by custodial parents for permission to relocate (see also, Priebe v Priebe, 55 NY2d 997 [upholding Appellate Division’s discretionary determination]).

Since our decisions in Weiss and Daghir, the lower courts have evolved a series of formulae and presumptions to aid them in making their decisions in these difficult relocation cases. The most commonly used formula involves a three-step analysis that looks first to whether the proposed relocation would deprive the noncustodial parent of "regular and meaningful access to the child” (e.g., Lavane v Lavane, 201 AD2d 623; Matter of Lake v Lake, 192 AD2d 751; Matter of Radford v Propper, 190 AD2d 93; Matter of Schaefer v Brennan, 170 AD2d 879; Matter of Cassidy v Kapur, 164 AD2d 513; Matter of Schouten v Schouten, 155 AD2d 461; Blundell v Blundell, 150 AD2d 321; Murphy v Murphy, 145 AD2d 857; Zaleski v Zaleski, 128 AD2d 865; Klein v Klein, 93 AD2d 807). Where a disruption of "regular and meaningful access” is not shown, the inquiry is truncated, and the courts generally will not go *737on to assess the merits and strength of the custodial parents’ motive for moving (see, e.g., Matter of Bennett v Bennett, 208 AD2d 1042; Partridge v Meyerson, 162 AD2d 507; Matter of Lake v Lake, supra). On the other hand, where such a disruption is established, a presumption that the move is not in the child’s best interest is invoked and the custodial parent seeking to relocate must demonstrate "exceptional circumstances” to justify the move (e.g., Matter of Lavelle v Freeman, 181 AD2d 976; Rybicki v Rybicki, 176 AD2d 867; Hathaway v Hathaway, 175 AD2d 336). Once that hurdle is overcome, the court will go on to consider the child’s best interests.

The premise underlying this formula is that children can derive an abundance of benefits from "the mature guiding hand and love of a second parent” (Weiss v Weiss, supra, at 175; accord, Matter of Radford v Propper, supra, at 99) and that, consequently, geographic changes that significantly impair the quantity and quality of parent-child contacts are to be "disfavored” (see, Matter of Farmer v Dervay, 174 AD2d 857, 858; Matter of Pasco v Nolen, 154 AD2d 774, 776; Matter of Towne v Towne, 154 AD2d 766, 767). While this premise has much merit as a tenet of human dynamics, the legal formula that it has spawned is problematic and, in many respects, unsatisfactory (see, Miller, Whatever Happened to the ”Best Interests” Analysis in New York Relocation Cases?, 15 Pace L Rev 339).

One problem with the three-tiered analysis is that it is difficult to apply. The lower courts have not settled on a uniform method of defining "meaningful access” (compare, Bennett v Bennett, supra, at 1043 [ability to maintain "close and meaningful relationship with * * * children], with Matter of Radford v Propper, supra, at 99 ["frequent and regular access”]), and even the distance of the move has not been a reliable indicator of whether the "meaningful access” test has been satisfied (compare, Rybicki v Rybicki, supra [disapproving 84-mile move], with Matter of Schouten v Schouten, 155 AD2d 461, supra [approving 258-mile move]; Murphy v Murphy, 145 AD2d 857, supra [approving 340-mile move]).

On a more fundamental level, the three-tiered test is unsatisfactory because it erects artificial barriers to the courts’ consideration of all of the relevant factors. Most moves outside of the noncustodial parent’s locale have some disruptive effect on that parent’s relationship with the child. Yet, if the disruption does not rise to the level of a deprivation of "meaningful access,” the three-tiered analysis would permit it without any *738further inquiry into such salient considerations as the custodial parent’s motives, the reasons for the proposed move and the positive or negative impact of the change on the child. Similarly, where the noncustodial parent has managed to overcome the threshold "meaningful access” hurdle, the three-tiered approach requires courts to refuse consent if there are no "exceptional circumstances” to justify the change, again without necessarily considering whether the move would serve the child’s best interests or whether the benefits to the children would outweigh the diminution in access by the noncustodial parent. The distorting effect of such a mechanical approach may be amplified where the courts require a showing of economic necessity or health-related compulsion to establish the requisite "exceptional circumstances” (see, e.g., Matter of Lavelle v Freeman, supra; Leslie v Leslie, 180 AD2d 620; Goodwin v Goodwin, 173 AD2d 769; Coniglio v Coniglio, 170 AD2d 477) or where the demands of a new marriage are summarily rejected as a sufficient basis for satisfying this test (e.g., Rybicki v Rybicki, supra; Richardson v Howard, 135 AD2d 1140).

In reality, cases in which a custodial parent’s desire to relocate conflicts with the desire of a noncustodial parent to maximize visitation opportunity are simply too complex to be satisfactorily handled within any mechanical, tiered analysis that prevents or interferes with a simultaneous weighing and comparative analysis of all of the relevant facts and circumstances. Although we have recognized and continue to appreciate both the need of the child and the right of the noncustodial parent to have regular and meaningful contact (see generally, Weiss v Weiss, supra), we also believe that no single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome. There are undoubtedly circumstances in which the loss of midweek or every weekend visits necessitated by a distant move may be devastating to the relationship between the noncustodial parent and the child. However, there are undoubtedly also many cases where less frequent but more extended visits over summers and school vacations would be equally conducive, or perhaps even more conducive, to the maintenance of a close parent-child relationship, since such extended visits give the parties the opportunity to interact in a normalized domestic setting. In any event, given the variety of possible permutations, it is counterproductive to rely on presumptions whose only real value is to simplify what are necessarily extremely complicated inquiries.

Accordingly, rather than endorsing the three-step meaningful access exceptional-circumstance analysis that some of the *739lower courts have used in the past, we hold that each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. While the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered (see, Strahl v Strahl, 66 AD2d 571, affd 49 NY2d 1036, supra), it is the rights and needs of the children that must be accorded the greatest weight, since they are innocent victims of their parents’ decision to divorce and are the least equipped to handle the stresses of the changing family situation.

Of course, the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern. Indeed, even where the move would leave the noncustodial parent with what may be considered "meaningful access,” there is still a need to weigh the effect of the quantitative and qualitative losses that naturally will result against such other relevant factors as the custodial parent’s reasons for wanting to relocate and the benefits that the child may enjoy or the harm that may ensue if the move is or is not permitted. Similarly, although economic necessity or a specific health-related concern may present a particularly persuasive ground for permitting the proposed move, other justifications, including the demands of a second marriage and the custodial parent’s opportunity to improve his or her economic situation, may also be valid motives that should not be summarily rejected, at least where the over-all impact on the child would be beneficial. While some courts have suggested that the custodial spouse’s remarriage or wish for a "fresh start” can never suffice to justify a distant move (see, e.g., Elkus v Elkus, 182 AD2d 45, 48; Stec v Levindofske, 153 AD2d 310), such a rule overlooks the value for the children that strengthening and stabilizing the new, postdivorce family unit can have in a particular case.

In addition to the custodial parent’s stated reasons for wanting to move and the noncustodial parent’s loss of access, another factor that may well become important in a particular case is the noncustodial parent’s interest in securing custody, as well as the feasibility and desirability of a change in custody. Obviously, where a child’s ties to the noncustodial parent and to the community are so strong as to make a long-distance move undesirable, the availability of a transfer of custody as realistic alternative to forcing the custodial parent to remain *740may have a significant impact on the outcome. By the same token, where the custodial parent’s reasons for moving are deemed valid and sound, the court in a proper case might consider the possibility and feasibility of a parallel move by an involved and committed noncustodial parent as an alternative to restricting a custodial parent’s mobility.

Other considerations that may have a bearing in particular cases are the good faith of the parents in requesting or opposing the move, the child’s respective attachments to the custodial and noncustodial parent, the possibility of devising a visitation schedule that will enable the noncustodial parent to maintain a meaningful parent-child relationship, the quality of the life-style that the child would have if the proposed move were permitted or denied, the negative impact, if any, from continued or exacerbated hostility between the custodial and noncustodial parents, and the effect that the move may have on any extended family relationships. Of course, any other facts or circumstances that have a bearing on the parties’ situation should be weighed with a view toward minimizing the parents’ discomfort and maximizing the child’s prospects of a stable, comfortable and happy life.

Like Humpty Dumpty, a family, once broken by divorce, cannot be put back together in precisely the same way. The relationship between the parents and the children is necessarily different after a divorce and, accordingly, it may be unrealistic in some cases to try to preserve the noncustodial parent’s accustomed close involvement in the children’s everyday life at the expense of the custodial parent’s efforts to start a new life or to form a new family unit. In some cases, the child’s interests might be better served by fashioning visitation plans that maximize the noncustodial parent’s opportunity to maintain a positive nurturing relationship while enabling the custodial parent, who has the primary child-rearing responsibility, to go forward with his or her life. In any event, it serves neither the interests of the children nor the ends of justice to view relocation cases through the prisms of presumptions and threshold tests that artificially skew the analysis in favor of one outcome or another.

Rather, we hold that, in all cases, the courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are certainly not limited to each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial *741parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests.2

¡IL

Turning finally to the cases before us, we conclude that the orders of the courts below, which approved each of the petitioners’ requests to move, should be upheld. In Tropea, petitioner sought permission to relocate from Onondaga County to the Schenectady area so that she could settle into a new home with her fiancé and raise her sons within a new family unit. The Appellate Division found that the move was in the children’s best interest and that the visitation schedule that petitioner proposed would afford respondent frequent and extended visitation.3 We find no reason derived from the record to upset the Appellate Division’s determinations on these points (see, Daghir v Daghir, supra, at 940). It is true that the Court considered whether the relocation would deprive respondent of "meaningful access” to his children. However, it is apparent from the remainder of its writing that the Court did not treat that factor as a threshold test barring further inquiry into the salient "best interests” question.

We note that respondent has offered no persuasive legal reason for disturbing the Appellate Division’s finding that the proposed relocation would be in the children’s best interest. Indeed, in this appeal, respondent’s arguments are directed almost entirely to petitioner’s purported "unclean hands” in *742developing a relationship with a person she met before the marriage was dissolved and in choosing to marry that individual after her divorce from respondent. As is evident from our earlier discussion, relocation determinations are not to be made as a means of castigating one party for what the other deems personal misconduct, nor are the courts to be used in this context as arbiters of the parties’ respective "guilt” or "innocence.” Children are not chattel, and custody and visitation decisions should be made with a view toward what best serves their interests, not what would reward or penalize a purportedly "innocent” or "blameworthy” parent.

Our analysis in Browner v Kenward is somewhat different. The Appellate Division in Browner found that the proposed move did not deprive the noncustodial parent of regular and meaningful access to his child and that it was therefore not necessary to weigh the validity and strength of petitioner’s reasons for moving against the significant change in the parent-child relationship that the move would entail. The Court’s methodology was thus at variance with the open-ended balancing analysis that the law requires. However, respondent’s only argument in this Court is that the Appellate Division misapplied the three-tiered Matter of Radford v Propper (supra) test to the particular facts of his case. Specifically, respondent argues that the 130-mile move from Westchester County to Pittsfield will eliminate his midweek visitation opportunity, reduce his ability to participate in his son’s religious worship and diminish the quality of the weekend visits he has with his son. While these losses are undoubtedly real and are certainly far from trivial, it cannot be said that they operated to deprive respondent of a meaningful opportunity to maintain a close relationship with his son. Hence, respondent was not entitled to an order reversing the outcome below and denying petitioner the permission to relocate that she sought. We note that the Family Court found that the proposed relocation in Browner was in the child’s best interests and the Appellate Division did not disturb that finding.

Accordingly, in Matter of Tropea v Tropea, the judgment of the Family Court and the prior nonfinal order of the Appellate Division brought up for review should be affirmed, with costs. In Matter of Browner v Kenward, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur.

*743In Matter of Tropea v Tropea: Judgment of Family Court appealed from and order of the Appellate Division brought up for review affirmed, with costs.

In Matter of Browner v Kenward: Order affirmed, with costs.

OPINION OF THE COURT

Pigott, J.

Petitioner, an inmate in New York’s correctional system, who had acknowledged paternity of a child prior to his imprisonment, commenced this Family Court Act proceeding seeking visitation with the child after respondent mother refused to bring the child to the prison. Following a fact-finding hearing, Family Court granted the petition, awarding petitioner periodic four-hour visits at the prison with the child, who was then three years old.

Family Court noted that “the law in New York presumes visitation with a non-custodial parent to be in the child’s best interest and the fact that such parent is incarcerated is not an automatic reason for blocking visitation.” The court found that petitioner had “demonstrated that he was involved in a meaningful way in the child’s life prior to his incarceration and seeks to maintain a relationship.” It further found that the child was old enough to travel to and from the prison by car without harm, and would “benefit from the visitation with his father.” The court considered the length of petitioner’s sentence and reasoned that “[l]osing contact for such a long period is felt to be detrimental to an established relationship.” The court concluded that visitation with petitioner would be in the child’s best interests.

The Appellate Division affirmed Family Court’s order, finding “a sound and substantial basis in the record to support the court’s determination to grant the father visitation with the child in accordance with the schedule set forth in the order” (96 AD3d 1694, 1695 [4th Dept 2012]). The Appellate Division deferred to Family Court’s ability to assess directly the parties’ character and credibility, noting that petitioner had “attempted to maintain a relationship with the child over the telephone and by sending letters, cards, and gifts. . . . [T]he father made, and continues to make, efforts to establish a relationship with the child, and it cannot be said that he is ‘a stranger to the child’ ” (id., quoting Matter of Culver v Culver, 82 AD3d 1296, 1299 [3d Dept 2011]).

*90While his appeal was pending, petitioner had been moved to a different correctional facility, further from respondent’s home. The Appellate Division made no finding of fact in this regard, ruling that any such change in circumstance was more appropriately the subject of a modification petition (id.).

Respondent’s primary contention is that the lower courts employed an incorrect legal standard in reviewing the petition for visitation. We granted respondent leave to appeal, and now affirm.

In Weiss v Weiss (52 NY2d 170 [1981]), we held that “in initially prescribing or approving custodial arrangements, absent exceptional circumstances, such as those in which it would be inimical to the welfare of the child or where a parent in some manner has forfeited his or her right to such access, appropriate provision for visitation or other access by the noncustodial parent follows almost as a matter of course” (id. at 175 [citation omitted]). Subsequent Appellate Division decisions have frequently referred to a rebuttable presumption that, in initial custodial arrangements, a noncustodial parent will be granted visitation. “[I]t is presumed that parental visitation is in the best interest of the child in the absence of proof that it will be harmful” (Matter of Nathaniel T., 97 AD2d 973, 974 [4th Dept 1983]) or proof that the noncustodial parent has forfeited the right to visitation. In the present case, Family Court similarly noted that New York law “presumes visitation with a non-custodial parent to be in the child’s best interest.”

Respondent contends that this presumption is contrary to this Court’s holding in Matter of Tropea v Tropea (87 NY2d 727 [1996]), in which we wrote that, where a custodial parent seeks judicial approval of a relocation plan that would hinder visitation by the noncustodial parent, “presumptions and threshold tests that artificially skew the analysis in favor of one outcome or another” must be rejected (id. at 740). However, in Tropea, we did not reject an initial presumption in favor of visitation, but rather a “mechanical, tiered analysis that prevents or interferes with a simultaneous weighing and comparative analysis of all of the relevant facts and circumstances” involved in deciding a relocation case (id. at 738). Our holding was not that presumptions can never be relied upon, but that “each relocation request must be considered on its own merits . . . and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child” (id. at 739). A rebuttable presumption that a noncustodial parent will be granted *91visitation is an appropriate starting point in any initial determination regarding custody and/or visitation.

Moreover, the rebuttable presumption in favor of visitation applies when the parent seeking visitation is incarcerated. A parent who is in prison does not forfeit his or her visitation rights by being incarcerated. “ [Petitioner's incarceration, standing alone, does not make a visitation order inappropriate,” but a demonstration “that such visitation would be harmful to the child will justify denying such a request” (Matter of Mohammed v Cortland County Dept. of Social Servs., 186 AD2d 908, 908 [3d Dept 1992], lv denied 81 NY2d 706 [1993]; see also e.g. Matter of Morales v Bruno, 29 AD3d 1001 [2d Dept 2006]; Matter of Thomas v Thomas, 277 AD2d 935 [4th Dept 2000]; Matter of Davis v Davis, 232 AD2d 773 [3d Dept 1996]). Such a presumption is consistent with Tropea because it does not give the noncustodial parent’s rights “such disproportionate weight as to predetermine the outcome” (id. at 738) or “bar[ ] further inquiry into the salient ‘best interests’ question” (id. at 741). In deciding whether the presumption is rebutted, the possibility that a visit to an incarcerated parent would be harmful to the child must be considered, together with other relevant facts. Visitation should be denied where it is demonstrated that under all the circumstances visitation would be harmful to the child’s welfare, or that the right to visitation has been forfeited.

In speaking of the manner in which the presumption of visitation may be rebutted, the Appellate Division has frequently used the terms “substantial proof’ and “substantial evidence.” “[T]he sweeping denial of the right of the father to visit or see the child is a drastic decision that should be based upon substantial evidence” (Herb v Herb, 8 AD2d 419, 422 [4th Dept 1959]). This language is intended to convey to lower courts and practitioners that visitation will be denied only upon a demonstration—that visitation would be harmful to the child—that proceeds by means of sworn testimony or documentary evidence. Thus, the arguments of the party contesting visitation did not amount to “substantial proof’ when that party did not attempt to contradict expert testimony favoring visitation (see Matter of Hughes v Wiegman, 150 AD2d 449, 450 [2d Dept 1989]), when sworn testimony and documentary evidence were entirely missing from the proceeding (see e.g. Matter of Folsom v Folsom, 262 AD2d 875, 876 [3d Dept 1999]; Matter of Thomas v Thomas, 277 AD2d 935 [4th Dept 2000]), or when the trial court’s decision was based on a secret report, without benefit of the parties’ *92responses (see Herb v Herb). The “substantial proof’ language should not be interpreted in such a way as to heighten the burden, of the party who opposes visitation, to rebut the presumption of visitation. The presumption in favor of visitation may be rebutted through demonstration by a preponderance of the evidence (see generally Tropea, 87 NY2d at 741).

Here, the lower courts used the appropriate legal standard, applying the presumption in favor of visitation and considering whether respondent rebutted the presumption through showing, by a preponderance of the evidence, that visitation would be harmful to the child.

Respondent’s second challenge is that there is no “sound and substantial basis in the testimony” (Bunim v Bunim, 298 NY 391, 393 [1949]) for finding that visitation was in the child’s best interests. However, the factual findings underpinning the lower courts’ best interests determinations in this case—that travel to and from the prison would not harm the child and that petitioner sought to maintain a relationship with the child— constitute affirmed findings of fact that we lack the “power to review . . . if . . . supported by evidence in the record” (Humphrey v State of New York, 60 NY2d 742, 743 [1983]; see e.g. Matter of Shondel J. v Mark D., 7 NY3d 320, 326 [2006]). Here, there is support in the record for the finding that the travel would not be harmful to the welfare of the child, and that petitioner made efforts to establish a meaningful relationship with the child.

Finally, respondent contends that the Appellate Division erred in failing to consider the impact of petitioner’s move from one prison to another. The Appellate Division correctly ruled that the question of petitioner’s move from one prison to another should have been brought to the attention of Family Court, by means of a modification petition. That issue should not have been raised in the first instance for determination by an appellate court (see Matter of Moore v Schill, 44 AD3d 1123 [2007]; see generally Matter of Michael B., 80 NY2d 299, 318 [1992]).

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Lippman and Judges Graffeo, Read, Smith and Rivera concur.

Order affirmed, without costs.