At the present time there are 14 states where there is a legal presumption that joint custody will be in the best interests of the minor child. There also appear to be about nine additional states where the presumption is applied in various shapes and forms. In those states where a legal presumption applies, the burden of proof falls on any parent who seeks sole custody to demonstrate that it would be better for the child than joint custody. Proving best interests is a daunting task because "best interests" is an amorphous concept, even the elements of which being difficult to agree upon. Thus, the burden of proof issue is of enormous significance.

While the existence of a presumption may create a shortcut in the custody determination process and help ease the court system's apparent backlog, some would argue that a presumption of joint custody is not individually tailored to serve the best interests of children and that, in particular, such a presumption may not sufficiently protect battered or abused women and children and reduce the leverage of dependent spouses.

New York is not one of the 14 states that has a statute creating that presumption or one of the nine states that otherwise officially applies the presumption, nor has its case law historically favored joint custody. Indeed, although since 1980 there have been a number of attempts to put forward and pass such legislation, none have yet been successful. The state's latest attempt at such a bill was introduced on Feb. 8, 2021 and is currently still pending. Nevertheless, over the years, a line of case law has developed signaling some judicial recognition of a presumption of joint legal custody in spite of the history of case law holding otherwise.