If parents in New York State divorce or separate, by law a judge must decide based on “the best interest of the child” where and with whom their children should live. That is as it should be.

The judge considers many factors in making that decision, for both legal and physical custody, in which, again by law, the “child’s health and safety shall be the paramount concerns.”

A 2021 survey by the National Parents Organization showed 92 percent of New Yorkers believe it is in the child’s best interest to have as much time as possible with each parent and also say they would be “more likely to vote for a candidate who supports children spending equal or nearly equal time with each parent … when both parents are fit and willing to be parents.”

So why don’t our state laws reflect that?

We spoke with Jason Houck of East Berne, who chairs the New York Affiliate of the National Parents Organization. His organization is pushing for changes in state law that would make it more likely, after parents divorce or separate, to have their children spend half their time with each of their parents as long as those parents are fit and loving.

Houck’s organization has produced a report card, evaluating each state on the issue. New York was given an F as one of the two worst states along with Rhode Island.

The report said the grade was assigned because “New York York has no statutory preference for, or presumption of, shared parenting.”

There is currently a bill in the New York State Senate, introduced by Republican Pamela Helming, from Canandaigua, with a companion bill in the State Assembly, introduced by Republican Brian Manktelow from Wayne County, both of which say “it is in the public  interest to encourage parents to share the rights and responsibilities of child-rearing” and both of which would “establish a presumption, affecting the burden of proof, that shared parenting is in the best interests of minor children.”

This should not be a partisan issue. As Houck notes, the 2021 survey included more Democrats than Republicans — with overwhelming support from both for shared parenting. Although 11 bills on the issue have been proposed in the last seven years, not one has made it out of committee, Houck said.

Nothing in current state law puts fathers at a presumed disadvantage but myths that have been potent for more than a century are hard to shatter.

Dr. Linda Nielsen, a professor of Adolescent and Educational Psychology at Wake Forest University, evaluated 40 studies on child custody with an eye to understanding the outcomes for children; her analysis was published in 2014 in the Journal of Divorce & Remarriage.

“As fathers have become more heavily involved in their children’s lives and as more mothers have resumed working full time in the children’s preschool years, shared parenting has become more common worldwide,” Nielsen writes, citing countries in Europe where the percentage of shared-parenting families has doubled or even tripled.

“The majority of children still live with their mother and spend no more than every other weekend and perhaps a midweek evening visit with their father. But a change is clearly underway,” she writes.

Houck says that our current norm is that children of divorced or separated couples spend 65 percent of their time with their mother and 35 percent with their father.

Nielsen zeroes in on the essential question: Are the children in shared-parenting families any better or worse off than children living primarily with their mother? “Put more bluntly,” she asks, “is the inconvenience of living in two homes worth it?”

Nielsen then goes through, study by study, looking at both the shortcomings and strong points of how each was conducted.

The oldest of the studies in the United States, conducted in the 1990s, was the Stanford Custody Project, which collected data from 1,100 divorced families with 1,406 children randomly chosen from the county’s divorce records. At the end of four years, the 51 adolescents in the shared-parenting families made better grades, were less depressed, and were more well-adjusted behaviorally than the 355 adolescents who lived primarily with their mothers.

The data came from interviews with the adolescents; parents’ questionnaires; and a battery of standardized tests measuring depression, anxiety, substance use, antisocial behavior, truancy, cheating, and delinquency. The shared-parenting children were better off on these measures than the other children of divorce.

The quality of the parent-child relationship and how often they felt caught between their parents was also assessed through interviews. The shared adolescents were less likely to be stressed by feeling the need to take care of their mother. Moreover, having closer relationships with both parents seemed to offset the negative impact of the parents’ conflicts in those families where the conflict remained high.

“Importantly,” writes Nielsen, “this study controlled for parents’ educations, incomes, and levels of conflict; used standardized measures to assess the children’s well-being; used a randomized sample; followed the children over a 4-year period; and gathered data from both parents and the children.”

“Overall,” Nielsen writes of the 40 studies, “the children in shared parenting families had better outcomes on measures of emotional, behavioral, and psychological well-being, as well as better physical health and better relationships with their fathers and their mothers, benefits that remained even when there were high levels of conflict between their parents.”

She concludes, “By acknowledging and by disseminating the findings from these 40 studies, we can help dispel many of the myths about shared parenting and promote a fuller understanding of this parenting plan option.”

Houck thinks there are two reasons New York’s laws are so outdated. One follows Nielsen’s line of reasoning. “It actually goes back to the 1950s, 1960s for custody, where mom was a stay-at-home mom — mom cooked the dinner, mom did the laundry; dad went out, dad’s the provider,” he said.

Houck went on, “Well, in today’s society, mom in many cases, is the breadwinner. You know, moms have careers. Dads have careers. So, the equality between men and women over the years has just gotten tremendously better. However, our laws still are not getting better.”

It’s not just fathers who are fighting for shared parenting. Emma Johnson, a divorced mother, is an advocate for shared parenting, which she does with her ex-husband. She believes it is healthier for women to have shared custody, allowing women to pursue independent careers rather than being dependent on their ex-husbands for financial support.

Currently, too, gay and lesbian couples are vying for time with their children after divorcing.

The second reason the laws in New York haven’t changed, Houck says, stressing that this is his opinion, is because New York has created an adversarial approach to divorce. “So, if the parents separate  right now, New York creates an adversarial approach where the first person to run to the courthouse and file for divorce may receive child support …. Instead of unifying a family and creating specific laws to be in place to keep the family unit together automatically from the get-go, they want those families to split.”

Certainly a mediation process may be “in the best interest of the child” rather than having a child caught between two parents in a prolonged court battle.

Houck himself has suffered from a long and difficult court battle. He was divorced in 2011 and said he shared equal time with his two daughters until 2013.

“I love my daughters. I was an involved father,” Houck said. “I went to all their school functions, all their field trips.” After the estrangement started, Houck said he tried father-daughter and family counseling and reunification counseling to no avail.

“We began litigation in June of ’16,” he said. “We didn’t finish up litigation until January of 2021 — five years, seven adjournments in Family Court to try to get an ending verdict.” By the time the verdict came, his daughters had aged out of the system.

For five years, Houck said, he had “no contact at full child support” and no finding on fitness.

“When the estrangement happens with children, many times it cuts off an entire side of a family,” Houck said, as has happened in his own family.

Some individual judges in New York no doubt see the value of shared parenting while others don’t. Several changes could be made to improve the lives of children in our state.

First, custody disputes could start with mediation, which would give parents a chance to work things out rather than becoming adversaries with children caught in the middle.

Second, court proceedings, if it comes to that, could be conducted more efficiently so that children would not have grown out of the system or lost the love of one parent, hardened in their allegiances to the other parent.

And third, given two fit and loving parents, a presumption in the law for shared parenting after divorce would make it more likely to happen. According to Nielsen’s exhaustive review of studies on the subject, that is what would be, as New York calls for, in the best interest of the child.