It is a misconception that courts favor mothers with respect to parenting time with children. New York law outlines specific factors courts must use to determine what is in the best interests of the children and these rules apply to both parents. However, judges can make mistakes, which is why it is important for parents to understand their rights and have good legal representation to present a strong case. Key guidelines for parenting time are as follows:
- Joint custody. New York courts prefer parents share custody equally – both physical and legal custody. With joint custody, there is no award of “parenting time.” The child lives with each parent for an approximately equal amount of time (physical custody) and parents share decision-making authority equally (legal custody).
- Parents agree to parenting time. Where one parent is granted primary physical custody, the other parent is typically awarded visitation or parenting time. New York law encourages the parents to resolve parenting time issues amicably and in the best interests of the children.
- Best interests of the child. If parents cannot agree, New York courts decide visitation based on what is in the best interests of the child taking into account the past history of the family, including the relationship between the parent and child, time each parent spent with the child, sharing of parental responsibilities, participation by the parent in the child’s activities, and other indicators of the parent’s involvement in the child’s life. Also relevant are the wishes and work schedules of the parents. For example, does one parent work long hours or have less job flexibility? Depending on the age of the child, his or her wishes may also be taken into account. Finally, courts will look at the parents’ willingness to cooperate with each other.
- Request for more parenting time. A parent may want more time with a child than he or she spent prior to divorce or separation. In that case, it is crucial for the parent to show why he or she wants additional parenting time and what has changed from the prior situation. For example, the parent may have avoided being at home because of family tension and now wants to rectify the situation. Or the parent worked extra hours to support the family and now wants to work less and spend more time with the child. Courts want to promote equal access to children but will look at the parent’s efforts to build a relationship within the time he or she has been given. They will examine whether the parent is spending quality time with the child even if it is limited. In addition, is the noncustodial parent willing to make gradual changes to parenting time? The court will also question a parent who wants to reduce work hours in a way that would compromise his or her earning capacity.
- Complaints about parenting. It is not unusual for parents to accuse each other of being bad parents. However, criticizing the other parent or interfering in the parent-child relationship can seriously damage the interfering parent’s rights to custody and visitation. Absent issues of abuse or neglect, judges will not limit a parent’s custodial or visitation rights.
Fathers have equal rights under the law to custody and parenting time. However, they should always consult experienced legal counsel about their case.