Most divorce or paternity cases involve financial issues which, along with custody and access arrangements, are resolved by agreement. The custody agreement generally provides for sole custody to reside with an obvious choice or, when there is the interest and involvement of both parties, provides for some form of joint custody. While it is extremely rare that both parents have a legitimate claim to sole custody, in some custody disputes there is disagreement over whether or to what extent joint custody is appropriate. In those cases, a custody proceeding may be initiated in which one or both parents seek sole custody. New York is the only state in the United States where joint custody is not specifically authorized by statute and for that reason, joint custody is usually not mentioned as a claim in a disputed custody proceeding.
The mere fact that one parent served as the primary parent during the marriage is not enough to defeat a custody claim. New York does not adhere to the approximation rule1 and, absent claims of abuse, there are no statutory factors to be considered:2 the New York standard for granting custody is discretionary and vague—the best interests of the child. It is, in some ways, a perfect statute that provides for an enormous amount of discretion. Unfortunately, discretion is impossible to predict, its administration being left to sometimes imperfect individuals. Thus, even if a mother (or sometimes a father) had been a stay-at-home parent she could lose custody to a responsible dad (or mom) who had not spent significant time with a child during the period prior to the separation, but as a result of the divorce, was prepared to alter his or her lifestyle to bring up a child.
