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New York: A “Shared Parenting” Failure

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New York: A “Shared Parenting” Failure

 

New York State is one of only two states in the U.S. to receive an “F” rating on the National Parents Organization “Shared Parenting Report Card” – a grade that New York has failed to improve upon since it first received the “F” rating in 2014.

The National Parents Organization is a 501c non-profit educational organization dedicated to the goal of promoting family court reform, research, and public education about the benefits of shared parenting following divorce or separation.   Independent research conducted by the National Parents Organization favors shared parenting, citing statistics showing that in single-parent or fatherless families children and teens are more likely to attempt suicide, drop out of school, become pregnant, become dependent on drugs and alcohol, exhibit behavior disorders, runaway or become homeless, or end up in juvenile institutions or prisons.   Public opinion polls also show that Americans strongly favor shared parenting, with 70%-75% in favor of a legal presumption of a shared parenting arrangement following divorce or separation.

With this research in mind, the National Parents Organization reviewed legislation in all 50 states.  New York State was one of only two (2) states (with Rhode Island) to receive an “F” grade in 2014 and in 2019.    The national average in 2014 was a grade of D+, which increased to a B- by 2019 due to changes in the law in nine (9) states.  Though eleven (11) shared parenting bills were introduced in the New York legislature from 2014 to 2019 – the second highest number of bills introduced, behind Missouri’s 12 – no changes were made to the New York Domestic Relations Law or Family Court Act to specifically promote shared parenting.

The current law in New York does not explicitly recognize shared parenting, joint legal custody, or joint residential custody.  Joint custody decisions are made based on case law, which allows for a broader range of interpretation by judges.  New York has no statutory preference for or presumption of shared parenting for temporary or final orders.  New York statutes do not include a policy statement or any other language encouraging shared parenting.

One possible explanation for this trend in New York law is the promotion of finality and clarity in divorce and custody matters. Granting one parent clear decision-making authority, it can be argued, cuts down on future trips to court when parents can’t agree.  Declaring one parent as residential parent simplifies the application of the New York child support laws, which require payment of child support to the parent with whom the children primarily reside.    These explanations, however, seem to be rooted in a desire to streamline court administration, rather than in a desire to promote healthy transitions to post-divorce family life.

One can also look to the history of New York divorce law, generally, to make sense of this trend. New York was the last state to adopt “no fault divorce,” waiting to do so until 2011.  Also, New York still has not eliminated the concept of “grounds” for divorce – “no fault,” called “irretrievable breakdown of the marriage,” was simply added as one of multiple “grounds” that can be asserted.   This is important to understand because there used to be a public policy presumption in the United States that people should remain married – the government had an explicitly stated interest in keeping families together and intact.  The designation of a married couple as an “intact” family meant that a divorced couple was a “broken” family.  The use of “grounds” such as cruelty, adultery, or abandonment to obtain a divorce (before “no fault” was available) further played into this idea of the family being “broken” – logically, it would not make sense for the government to promote the continued cooperation of parents who had abused or betrayed one another, and so the laws about parenting would have been designed with the concept of two clear and separate households in mind, one with the children and one without.    This is an outdated way of thinking that does not contemplate the amicable parting of two people who have simply changed their minds about marriage.

Because of the current state of New York law on parenting, couples who wish to co-parent are encouraged to enter into parenting-plan contracts of their own design, worked out independently or with the help of mediators or lawyers.  This removes the decision from the court and puts it in the hands of the parents.  A parenting plan contract is a legally binding document, providing the parents with guidance for future conflict resolution and clarity about their goals for their children, which allows parents to sidestep the messy and often dissatisfying process of litigating custody in New York State.

Kleyman Law Firm is divorce law firm handling complex, contested and high conflict divorces.  The Kleyman Law Firm is located at One Rockefeller Plaza, 11th Floor, New York, NY 10020 and accepts cases in Queens, Brooklyn, Manhattan, Bronx, Staten Island, Westchester and Long Island. For more information visit www.NYC-DivorceLawyer.com or call (212) 401-1977.

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