In the evolving landscape of family law, two significant trends are shaping the way courts approach child custody: the push for a constitutional guarantee of equal rights and the movement in many states to create a presumption of shared physical custody. For New York families, the recent passage of the state's Equal Rights Amendment (ERA) introduces a new dynamic that will interact with these broader national trends and could have a profound impact on child custody cases.
New York's ERA: A New Constitutional Foundation
The New York State Constitution, historically, has not provided a comprehensive equal rights provision. While certain statutes have prohibited discrimination based on protected characteristics, these protections were not enshrined at the highest level of legal authority. The new ERA, however, changes this by prohibiting the denial of equal protection of the law and discrimination based on a wide range of factors, including "sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy."
While the full legal implications of this amendment are still to be determined by the courts, it is clear that it elevates the legal standard for any government action that treats individuals differently based on these characteristics. In the context of family law, this could mean that traditional, gender-based assumptions about parental roles are subject to a higher level of judicial scrutiny than ever before. For example, any lingering biases that might favor one parent over another based on their gender could be challenged as unconstitutional discrimination. While New York already provides that there is no presumption based on gender, this presumption still comes up against lingering, often unrealized, biases still felt by individual judges.
The Rise of Parental Access Presumptions in Other States
Simultaneously, a growing number of states have been adopting legislation that establishes a legal presumption of shared physical custody, or a presumption that both parents should have equal access to their children. These laws are a departure from the traditional "best interests of the child" standard, which, in the past, often led to one parent being designated the "primary caretaker" with sole or primary physical custody.
The rationale behind these presumption laws is that a strong, consistent relationship with both parents is, by default, in the child's best interest. These presumptions are rebuttable, meaning a parent can present evidence to the court to show why a 50/50 arrangement would not be appropriate, such as in cases of domestic violence, substance abuse, or a history of one parent being uninvolved.
A number of states have already enacted such laws, with others considering similar legislation. For example:
- Kentucky: In 2018, Kentucky enacted a law creating a rebuttable presumption that joint custody and equal shared parenting time is in the best interest of the child. See, e.g., Ky. Rev. Stat. Ann. § 403.270.
- Florida: Florida law also establishes a presumption that equal shared parental responsibility is in the best interest of the minor child. See Fla. Stat. § 61.13.
- Arkansas: Arkansas's family law includes a rebuttable presumption that joint custody is in the best interest of the child, with "joint custody" defined as the "approximate and reasonable equal division of time with the child by both parents." See Ark. Code Ann. § 9-13-101.
- Colorado: Colorado has codified that, in most circumstances, it is in the best interest of all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage. While not an explicit 50/50 presumption, this legislative finding strongly encourages courts to consider equal parenting time.
The "Best Interests of the Child" Standard in New York
New York courts have long operated under the "best interests of the child" standard. There have been various attempts to legislate the 50/50 custody presumption. See https://legislation.nysenate.gov/pdf/bills/2025/S4128 Currently, no presumption in New York exists. Applying the best interest test requires a comprehensive, fact-specific analysis that considers a multitude of factors, including:
- The quality of each parent's home environment.
- The parenting skills and fitness of each parent.
- The child's relationships with siblings and other family members.
- The mental and physical health of the parents.
- The parents' ability to cooperate and communicate with each other.
- The child's wishes, depending on their age and maturity.
Crucially, New York courts do not start with a presumption in favor of either parent. There is no built-in preference for a mother over a father, or vice-versa. The focus remains on the specific circumstances of the family and what will promote the child's welfare and stability.
How These Trends Intersect in New York Custody Cases
The question now is how the new ERA will interact with New York's existing "best interests" standard and the national trend toward equal access presumptions.
- Challenging Gender Bias: The ERA provides a powerful tool to challenge any remaining, albeit subtle, gender biases that might influence a custody decision. While New York law officially avoids gender preference, a parent who feels they were discriminated against due to their gender—for example, a father who was passed over for primary custody based on the court's assumption that the mother is the more "natural" caregiver—now has a strong constitutional argument to make.
- A Potential Shift Towards Equal Access: While the ERA does not create a presumption of 50/50 custody, it could be used to advocate for a parenting plan that maximizes equal access for both parents, absent a compelling reason to do otherwise. The argument would be that limiting a parent's access to their child based on their gender is a form of discrimination, and that the only justifiable reason for a disproportionate custody schedule must be demonstrably rooted in the child's best interests, not in a judge's or a law's outdated gender norms.
- The "Best Interests" Standard Remains Paramount: It is critical to understand that the ERA is unlikely to dismantle New York's "best interests of the child" standard. This standard is flexible and designed to protect children from harm. The ERA will more likely serve as a lens through which the "best interests" factors are analyzed, ensuring that they are applied in a gender-neutral manner. For example, a court's assessment of a parent's "fitness" or "ability to cooperate" will have to be free from discriminatory assumptions.
In conclusion, New York family law is at a fascinating crossroads. The new Equal Rights Amendment, combined with the national conversation on parental rights and access, will likely lead to a more rigorous, and perhaps more equitable, application of the "best interests of the child" standard. It empowers parents to challenge implicit biases and could encourage a greater emphasis on co-parenting and shared access. For legal professionals and families alike, understanding this evolving interplay is crucial for navigating the future of child custody in New York.
For a related look at how New York courts currently divide holiday parenting time, see Juneteenth and Veterans Day: How to Divide the Holiday.
Disclaimer: This information is for general informational purposes only and does not constitute legal advice. The legal landscape regarding family law and child custody is complex and constantly evolving. The status of proposed legislation is subject to change. For advice on your specific situation, you should consult with a qualified attorney in New York.