Child Custody: Rights of Parents vs. Children’s Best Interests

In recent years, New York family law has evolved significantly in favor of joint physical custody with an emphasis on prioritizing a more equal division of parenting time. Joint legal custody, involving shared decision-making by both parents where the child lives primarily with one parent has been the norm for many years. Equally divided parenting time where the time shared with both parents is about the same has recently become more common. In part, this is due to the evolution of gender roles and increasing involvement of hands-on fathers. The division of labor in families is more fluid than it once was and the law no longer assumes that a mother is necessarily a child’s “psychological parent.” Both parents are given a fair and thorough assessment and more judges are viewing both parents as equals in a child’s day-to-day life.

While objectively, a more gender-neutral egalitarian approach to parenting time is most fair to parents, 50-50 physical custody might not necessarily be in the best interest of a young child. This is dependent on many factors, including where the parents reside and work, where the child attends school or daycare, sports, activities and the logistics of traveling back and forth from these locations.

The recent emphasis on 50-50 parenting time begs the question of what will optimize the child’s well-being. A parent needs to balance his or her desire to maximize the exercise of parenting rights alongside the arrangement that will best support the child’s welfare. Potentially, greater parental access is not always in the child’s best interest if it jeopardizes the child’s stability, stress level, and sense of security. While 50-50 parenting time may be more “equal,” benefits to the child are debatable in cases involving lengthy commutes and repeated shuffling back and forth from one parent’s home to the other. Qualitatively, a child might have a better experience with both parents if he or she can settle into one home during the daycare or school week and the other home for weekends. Parents,too, might better enjoy time with their child if a routine is established that provides for consistency and more “quality time” together.

One case involved the question of whether or not a kindergarten-aged child should commute from one neighborhood of Manhattan to another during the school week. This would add multiple hours to the child’s school day and require him or her to wake up earlier than necessary on some days of the week so the mother and father could reach near-exact equal parenting time. The disputed commute also entailed traveling at peak times on public transportation and an inconsistent week-to-week routine. Although young children are highly adaptable, it is questionable whether or not this type of lifestyle would promote happiness for a child of separated parents.

Of course, each case is unique, as is each family. However, generally speaking, it can be valuable for parents to step back and re-evaluate their demands regarding equal parenting time to consider the wear and tear on their child, as well as the essential distinction between quality and quantity.