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Should NY Courts Start Presuming Shared Parenting is Best for Children?

A recent report ranked New York as one of the worst states for laws supporting shared parenting, since state law does nothing to encourage this arrangement.

As gender roles and societal norms have evolved, shared or equal parenting after divorce has become more appealing to many families. Allowing children to maintain strong relationships with both parents offers undeniable benefits. Still, the debate about whether state laws should promote or simply permit shared parenting continues. A recent report, which reviewed how well state child custody laws support shared parenting and gave New York a failing grade, drew attention to the issue.

Limited support for shared parenting

According to USA Today, the National Parents Organization recently reviewed child custody laws in all 50 states. The organization believes that 50-50 shared parenting is the most beneficial arrangement for children, except in cases of domestic violence, substance abuse or other significant issues. With those guidelines in mind, the organization assigned grades of ‘D’ to nearly half of the states. New York was one of two states to receive an ‘F.’

New York’s laws do not presume shared parenting is preferable or encourage this arrangement. Instead, family law judges consider various factors when awarding legal and physical custody. Some considerations, such as each parent’s ability to encourage an ongoing relationship between the child and other parent, suggest that state laws support a degree of shared parenting. Still, other factors that family law judges evaluate may encourage uneven custody orders. These factors include:

  • Whether one parent has previously acted as the primary caretaker of the child
  • Which parent the child currently resides with
  • The fitness of each parent and the home the parent can provide
  • The child’s own preference
  • Each parent’s ability to support the child

A bill that one New York senator introduced in 2013 would establish the presumption that equal parenting is the ideal custody arrangement, except in extenuating circumstances. The burden of proving otherwise would fall on the parent requesting sole custody, according to the bill text. Although this bill could offer benefits for some families, critics worry about the potential consequences of assuming shared parenting time is best.

Risks of equal parenting presumption

Laws supporting shared parenting typically make provisions for cases when shared parenting would clearly not be ideal – for instance, when one parent has a history of abusing the child or other parent. However, critics worry that it could still be burdensome for parents to protect their children from dangerous arrangements, according to USA Today. For example, in some cases of domestic violence, victims may lack legal proof of the abuse because they have failed to seek restraining orders out of fear or for other reasons.

Some critics also believe a preference for equal custody may prevent family law judges from finding the arrangement that is truly best for the child. In some cases, critics contend, the best interest of the parents may even override the best interests of the child.

Help during custody cases

Under New York’s current laws, shared parenting is a far from certain outcome following divorce. Any parents who are preparing to divorce in the state should consider meeting with a family law attorney for advice on finding the right arrangement for the children while still protecting personal parental rights.

Keywords: divorce, children, custody, visitation

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