More than 30 years have passed since the New York Court of Appeals sought to resolve the debate as to whether, in the context of a divorce, the courts should favor joint custody of children over sole custody. In Braiman v. Braiman, 44 NY2d 584 (1978), that court determined that warring parents may not be awarded joint custody and that sole custody must reside in one parent, all “in the best interests of the child.” The “best interests of the child standard,” codified at Domestic Relations Law (DRL) §240(1)(a), appears to have found its basis in the pre-Civil War decision of People ex rel. Trainer v. Cooper, 8 How. Pr. 288 (1853), where the court followed what today is termed the “gender biased” notion that the “father’s rights are paramount even to the mother’s,” in choosing between a free-born African-American father and a freed slave mother.
Fortunately, the law has evolved beyond biases involving sex, sexual orientation, promiscuity, race, ethnicity, religion, etc. Unfortunately, New York statutory and decisional law stops short of the mark when addressing the issue of “parental access” to children by both parents. Instead, the focus for decisional law has been on the age-old concepts of “custody and visitation” and, as a result, the goal of achieving what is “in the best interests of the child” is only partially fulfilled.
Lack of Guidance
