When you talk to matrimonial lawyers in other states, they marvel at our peculiar practices. Fault divorces, let alone jury trials for fault divorces, always raise an eyebrow or two. Then you explain about enhanced earnings,[1] child support to age 21 including college contributions,[2] no recoupment of child support overpayments,[3] double dipping of child support and enhanced earnings[4] and guideline recalculations every two years in spite of agreements to the contrary.[5] No one believes you. So, I was not surprised to learn that other states have more progressive rules about custodial access, known as visitation in the Domestic Relations Law.[6] After all, if there are Child Support Guidelines, why not Parental Access Guidelines?
Our child support guidelines are the product of national child support enforcement regulations, essentially mandating that state legislatures have some standards for the determination of support.[7] There is no such impetus from Congress or the New York Legislature for parental access guidelines. The Melonas Commission and the 2006 Matrimonial Commission[8] did not address this issue among the myriad of suggested reforms. However, other states and municipalities have addressed these issues in an effort to set minimum standards of access and to avoid protracted litigation over such trivial issues as times for pick up and drop off, and standards for telephone access and clothing exchanges. The Third Department determined custodial schedules a few years ago in overruling minimal alternating weekend access in favor of more expanded midweek and full weekend access.[9] However, such cases are few and far between and are often the product of specific circumstances.[10] There are no generally recognized standards for parental access in New York, leaving it to judges to fashion schedules based on their own proclivities, experiences and prejudices. Appellate Courts are loathe to overturn a parental schedule, leaving such awards to the “sound discretion of the trial judges.”[11] At best, visitation schedules are remanded to the trial court to fashion an appropriate schedule.[12] Experts can provide no help as there is little scientific evidence to suggest that trained professionals have the expertise or training to establish parenting schedules.[13]
For the most part, the custodial guidelines of other states grant minimal access to noncustodial parents. In excruciating detail they deal with access for very young children, holidays, telephone calls and clothing exchanges. The Arizona Model Parenting Guidelines[14] breaks it down into three to four year intervals of a child’s life, and all require that the parents live within 150 to 200 miles for significant access. However, most guidelines have an alternating weekend schedule from Friday evening to Sunday evening and a midweek dinner visit. Indiana,[15] Arizona, Oklahoma,[16] Utah,[17] South Dakota,[18] Delaware,[19] and some courts in Mississippi,[20] Ohio,[21] and Florida[22] follow such rules. We have come a long way since the Draconian conclusions of Beyond the Best Interests of the Child,[23] where Goldstein, Freud and Solnit recommended the identification of the psychological parent and the essential disappearance of the other parent. However, in a country of two working parent households, custodial schedules do not mirror the shared parental responsibilities when parents separate. “Traditional” families of working spouse/homemaker spouse are no longer the norm in America. In 1940, 60% of American families had this traditional structure,[24] but the Bureau of Labor Statistics reported that 62 percent of families with children now have two working parents.[25]
Much judicial energy is spent on litigating access schedules that often have little to do with a child’s best interests. Are there any statistics that show a child does significantly better if the drop off time is 6:00 p.m. Sunday versus Monday morning or if a child spends midweek overnight with the non primary parent? Of course not. Yet these issues are litigated with a vengeance as parents fight for every minute of parenting time in an effort to obtain favorable child support considerations[26] or just to deny access to the offending spouse. Is it not more sensible to have parenting guidelines that try to mirror the child’s contacts with both parents in the intact household, if for no other reason than to limit the needless litigation of these issues that are so important for parents and so insignificant for many children? I am guessing a semester or two of college education expenses are often spent to determine whether there should be a phone call every day at 7:00 p.m. or whether a parent should return a child at 10:00 a.m. or noon on Christmas Day. Any law guardian with more than two weeks experience will tell you that the child’s best interests are served by a settlement of custodial schedules as opposed to a particular date or time for pick up and drop off. I am therefore proposing the following guidelines in the hopes that someday, someway children of separating parents can be spared the needless stress associated with parental access litigation. Maybe then we can start eliminating the useless trials over sole versus joint custody, but I leave that for another day.
I realize that these can only be guidelines, and the actual schedule may have to altered based on working schedules, out of town parents or for very young children. However, I believe this or some semblance thereof should be the “default” schedule for most families in the throes of custodial litigation. This should be the “presumptive” schedule and a parent who wishes to deviate should have to show good cause in the best interests of the child.
Proposed New York Parental Access Guidelines
1. WEEKENDS: Each parent shall have access on alternate weekends from Friday after school or at 3:00 p.m. if there is no school until Monday morning when the child shall be brought to school or to the mother/father at 9:00 a.m. if there is no school. If Monday is a school holiday, then access shall end Tuesday morning when the child shall be brought to school or to the mother/father at 9:00 a.m. if there is no school. Monday school holidays have precedence over the weekday schedule.
2. WEEKDAY: If both parents worked full time prior to separation, the mother/father shall have access from Monday at 9:00 a.m. until Wednesday morning when the child shall be brought to school or to the father/mother 9:00 a.m. if there is no school. Then the father/mother shall have access from Wednesday at 9:00 a.m. until Friday morning when the child shall be brought to school or to the father/mother 3:00 p.m. if there is no school. If one parent worked part time or not at all prior to separation, then the full time working parent shall have access every Wednesday after school or 3:00 p.m. if there is no school until Thursday morning when the child shall be brought to school or 9:00 a.m. if there is no school.
3. HOLIDAYS: Holidays shall take precedence of over Weekend and Weekday access. The father shall have the holidays in Column1 n odd-numbered years and the holidays in Column 2 in the even-numbered years. The mother shall have the children on the holidays in Column 1 in the even-numbered years and the holidays in Column 2 in odd-numbered years:
Column 1
Column 2
Fourth of July Spring BreakHalloweenChristmas Day
ThanksgivingWinter BreakChristmas Eve
The Fourth of July shall be from 9:00 a.m. on July 4 to 9:00 a.m. on July 5. Halloween shall be October 31 after school or noon if there is no school until November 1 to school or 9:00 a.m. if there is no school. Thanksgiving shall be from the Wednesday before after school or noon if there is no school until the Friday after Thanksgiving at 9:00 a.m. Christmas Eve shall be from noon on December 24 until noon on December 25. Christmas Day shall be from noon on December 25 until noon on December 26. Spring and Winter break shall commence when the child ends school immediately prior to the break until the child enters school following the break.
4. MOTHER'S/FATHER'S DAY: On Mother's Day and Father's Day, the children shall be with the appropriate parent from 9 a.m. until 6 p.m. This shall take precedence over weekend access.
5. SUMMER VACATION: Each parent shall have access for two weeks of summer access to be communicated to the other parent in writing on or before April 1 of each year. However, summer vacation shall not abut the regular access. Therefore the child shall not have more than 14 days without seeing the other parent.
6. TELEPHONE/MAIL: Neither parent shall interfere with telephone or mail contact between the children and the other parent.
[1] O’Brien v. O’Brien, 66 N.Y.2nd 576 (1985)
[2] Domestic Relations Law Section 240(1-b)(b)(2)
[3] Annette M.R. v. John W.R., __ A.D.3rd __, 845 N.Y.S.2nd 616 (4th Dept., 2007))
[4] Holterman v. Holterman, 3 N.Y.3rd 1 (2004)
[5] Tompkins County Support Collection Unit ex rel. Chamberlin v. Chamberlin, 99 N.Y.2nd 328 (2003)
[6] Domestic Relations Law Section 240
[7] Collectively known as the Child Support Enforcement Amendments of 1984 (CSEA), Pub. L. 98-378, 98 Stat. 1305, amending 42 U.S.C. §§ 657-662.
[8] The full report can be found at http://www.nycourts.gov/reports/matrimonialcommissionreport.pdf
[9] Somerville v. Somerville, 307 A.D.2nd 481 (3rd Dept., 2003); Valentine v. Valentine, 3 A.D.3rd 646 (3rd Dept., 2003).
[10] See the recent case of Vincent v. Anna Tomaino, 848 N.Y.S.2nd 437 (3rd Dept., 2007), where the Third Department overturned a schedule of no overnight visitation as inappropriate.
[11] Thompson v. Yu-Thompson, 41 A.D.3rd 487 (2nd Dept., 2007).
[12] Hugh H. v. Fhara L., 44 A.D.3rd 192 (1st Dept., 2007)
[13] “Should the Mental Health Evaluator Decide child Custody?”, Family Court Review, May 2005 and "Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance," Family Court Review of the Association of Family and Conciliation Courts by Professor Timothy Tippins and Jeffrey Wittmann, Ph.D.
[14] http://www.supreme.state.az.us/dr/Pdf/Parenting_Time_Plan_Final.pdf
[15] http://www.in.gov/judiciary/rules/parenting/
[16] http://www.oscn.net/forms/aoc_form/adobe/Form.76.pdf
[17] http://www.divorcenet.com/states/utah/ut_art01
[18] http://www.sdjudicial.com/index.asp?title=sharing_parental_guidelines&category=public_info&nav=91
[19] http://courts.state.de.us/How%20To/Custody%20and%20Visitation/?visitation.htm
[20] http://15thchancerydistrictms.org/images/visitation%20guidelines.pdf
[21] http://domestic.cuyahogacounty.us/Rules/Rule18.htm
[22] http://www.jud6.org/ContactInformation/familyLaw/non%20primary%20res%20parent%20visitation%20sched%202001.pdf
[23] The Free Press, 1972
[24] Economic Policy Foundation, "American Workplace: Labor Day 1997 Report; Bureau of Labor Statistics
[25] “Trends in Labor Force Participation of Married Mothers of Infants.” by the Bureau of Labor Statistics, February, 2007.
[26] Somerville v. Somerville, 5 A.D.3rd 878 (3rd Dept., 2004)
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