A sensitive topic to discuss, and the terminology is draconian, almost  willing a fight between two persons both of whom feel it necessary not to be the one without the rights of ‘custody’. A better word, adopted in many States and by mediators, is Parental Planning, sometimes encompassing legal & physical custody and visitation aspects. Physical Custody involves the  day to day timetable of the children and the parental care of them during that time. There may be  a primary residence / sole physical custodian, with the other parent enjoying visitation rights, or there may be joint physical custody.

Who will be chosen as the physical custodian(s) in the absence of agreement and court approval?  As to the law, the only universally safe thing to say is that the Court considers “the best interests of the children”. Guidelines have evolved or are enunciated, which are followed and weighed up at the discretion of the Judge.

The clearest covert bias is that of gender,  the mother is naturally and perhaps understandably thought of as the better choice based on a routine examination of the underlying factors. . However as society changes, the prejudices also change, and some states have a preference toward joint custody. Nevertheless in New York the preponderance is still for the mother to have sole physical custody, and in some Counties that preponderance is significant. In justification, the courts are  perhaps reflecting the social mores and therefore adapting to the best interests of the child in a particular place.

In any situation, the father may gain joint physical custody, or even sole physical custody,  as the best interests prevail. However, in practice, there may be a (highly) rebuttable presumption at work.

Whether joint custody is practical on the ground is an interesting debate which it is not proposed to answer here. It is clear that it is best to involve both parents, and the question is of degree. However, the lack of a stable home, the constant shuffling, the need for a certainty can militate against the ideals of a fair split. Some ex couples who divorce on very good terms may agree to rotate one house between them, but even here the intricate complexities of space can confuse.  Respected therapists encourage joint custody on the one hand, and  some notable attorneys in New York who have seen many situations on the ground  strongly feel that it is simply not in the best interests of the child to take part in truly joint home and time sharing.

Summarizing, while there is a clear progression toward joint custody, the jury on the ‘success’ rate in consequence is still out. And while in Law there is a progression, it starts in New York from a limited base.

^{THIS INFORMATION IS OF GENERAL NATURE ONLY AND NOT TO BE RELIED UPON IN ANY SPECIFIC SITUATION. IN ALL CASES CONSULT AN ATTORNEY FOR PROPER ADVICE}