In the 1950s, the American family was often viewed, both by society and in the courts, like the families on such television shows as “Father Knows Best.” There was one husband and one wife, living in a one-family home. The mother stayed home and the father was the sole breadwinner. In the event of a divorce (which never happened on television), courts made a presumption in favor of the mother having “custody” of the children, with the fathers granted a schedule of “visitation” with their own children, often just on alternate weekends. For fathers fortunate enough to benefit from sympathetic judges, they might also enjoy a “visit” once a week on a weeknight for dinner.

What a different world we live in now. American society now recognizes that even in “traditional” male-female married couples, most women work outside the home. There are also many more untraditional households in which only one of the adults is the natural parent of the children, households of same-sex couples, and grandparent-parent-child households.

Although courts and the law always take time to catch up with societal changes, eventually they recognize when they must adapt. New York State, for example, has replaced the concept of “visitation” (although it still appears in the statutes and courts’ forms) with the concept of “parental access.” New York also now recognizes and performs same-sex marriages, which will obviously increase custodial arrangements by and benefitting such couples and their children, biological or adopted.

In some families, the parental access schedule leaves the children in one residence while the parents alternate staying with the children in that residence. This is called “nesting” and disturbs the children much less than shuttling them between two homes. It takes more financial means and parental cooperation but couples who can afford it often opt for this arrangement. Many couples also now agree upon “joint custody,” wherein they consult each other about important decisions affecting their children.

Same-sex couples are a growing source of litigation and judges now are required to apply the same criteria and standards formerly applied to divorcing heterosexual couples. Since the standard is always “the best interests of the child,” courts accept evidence of any factors which could affect that goal. The “psychological parent” who has spent more time in child-rearing activities is more likely to prevail in a custody case. Exceptions are naturally made for cases involving that parent’s mental illness, substance abuse, or other extraordinary factors showing that a different arrangement would better serve the best interests of the child. In still-rare but no-longer extraordinary cases, New York judges sometimes recognize that a child would be better in the custody of non-parents such as grandparents, aunts, uncles and even former stepparents.

As society evolves, so do the attitudes of courts, judges, attorneys and litigants about issues of custody and parental access. While the law and courts have not quite caught up to society, at this point they have advanced several generations beyond the outmoded mores and now unrealistic traditions of those black & white television shows of the 1950s.

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