Survey Says: NY Continues to Embrace Joint Custody Arrangements

New York Law Journal

Throughout this author’s years of practicing matrimonial law, I’ve often heard that New York does not allow for joint custody of children in divorce. Therefore, it would be futile to ask a New York court to award “joint custody” because no such thing exists in this state.

While it is true that New York has no statutory presumption that joint custody is per se in a child’s best interests, the fact is that New York’s decisional law is evolving to the point where blanket statements to the effect that “there’s no such thing as joint custody in New York” are shallow at best.

The Fourth Department’s recent decision in Matter of Brady J.S. v. Darla, A.B., 2022 NY Slip Op 04858, illustrates the extent to which New York courts are adapting jurisprudence on custody matters to the particulars of each family—all with an eye toward trying to determine what will best serve a child’s relationship with each parent going forward.

The Fourth Department affirmed an order of the Family Court, Monroe County, which awarded the father “joint custody with the mother and grandparents and shared physical residence with the grandparents, with zones of influence for the father and grandparents.” Before we get into the specifics of the case, there are three sentences in the Family Court’s underlying, 2020 decision that ought to be recited to prospective clients seeking advice on custody issues at the initial consult. Those three sentences are as follows:

  1. A child’s best interests are protected best by allowing the development of the fullest possible healthy relationship with both parents ….
  2. Even an antagonistic relationship between the parties, without more, does not preclude an award of shared physical custody.
  3. When traditional joint custody—and thus joint decision making with respect to a child—is not possible because of the antagonistic relationship between the parties … it may be appropriate to grant ‘zones’ or ‘spheres’ of decision-making authority to the parties.

These three legal tenets are critical to educating prospective clients about the New York legal landscape on child custody.

First, New York affirmatively recognizes that there is value to be derived from a child having a meaningful relationship with both parents. Stated differently, if the prospective client is asking whether or not there is a basis to seek sole custody, perhaps the better question is: Is there any basis to tell a court that a child will be better served by having a relationship with one and only one parent.

Second, when a prospective client asks what the meaning of “sole custody” is at the intake stage, a textbook answer might be to begin by identifying the difference between legal custody and physical custody. To genuinely service the prospective client at the intake stage, however, it is well worth explaining that even if the relationship between the parents is permeated with strife, that may not be enough to defeat shared physical custody. Put another way, an award of sole custody on decision-making does not mean, ipso facto, that the duration of one parent’s access with the child(ren) will be dramatically larger in scope than that of the other parent.

Third, while parents in conflict may not lend themselves to across the board joint-decision making, it is imperative that prospective clients understand the stakes when it comes to “spheres” of decision-making. Spheres of decision-making may not be “joint” custody in the sense that all major matters affecting the child(ren) are decided jointly, but it still means that there is some degree of sharing in terms of decision-making responsibility.

Turning to the facts of Matter of Brady, when the subject child was born, the father had been in jail on a larceny conviction. After he was released not long after the child was born, the father was convicted upon a guilty plea of rape for having had sex with the mother before she turned 17 (the father was 20 at the time he began a sexual relationship with the mother who was then 15). Brady involved a petition by the father for custody wherein he asserted that the maternal grandparents (who had primary physical custody) had not complied with a 2013 consent order which provided that the father’s access should increase over time and transition to unsupervised visitation. The grandparents refused increased visitation, “relying on the father’s past conviction regarding the statutory rape of their daughter.”

The Fourth Department agreed that a sound and substantial basis existed to award the father joint custody with the mother and grandparents, shared physical residence with the grandparents and zones of influence for the father and grandparents. The decision notes that the father “admitted his prior mistakes without excuses or hesitancy,” and that he “paid for his crimes and turned his life around, obtaining gainful employment and purchasing his own home.” Further, the child was “never [] harmed in his presence and desire[d] to spend time with him.”

The decision refers to testimony from the grandparents that they “saw no distinction between forcible rape and statutory rape, even when the parties continued the relationship for more than a decade.” The court did not agree with the grandparents’ “steadfast (and unreasonable) belief that there should be no contact between the father and the child.”

It could well be that Matter of Brady is an anomaly. We should not assume that one decision represents a major shift in long-standing policies of this state. That said, if the facts in Brady were not compelling enough to credit the grandparents’ testimony, then it begs the question what set of facts would, or could, yield a different result in other cases that have yet to be decided.

The point of my addressing Matter of Brady is to say that while certain facts may well support an award of sole custody, that remains—as Brady implicitly reminds us—an extraordinary remedy in New York. So the next time a prospective client asks you if you think that an award of sole custody is in the cards, if your instinct is to deliver a “yes” in the snap of a finger, it would be wise to pause, read Brady, and then determine how you should give the most sensible legal advice under the circumstances.

"Survey Says: NY Continues to Embrace Joint Custody Arrangements," by Alan R. Feigenbaum was published in the New York Law Journal on September 12, 2022.

Reprinted with permission from the September 12, 2022, edition of the New York Law Journal © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.