NYC family law attorney Bernard Clair explains how visitation rights are determined. He explains that New York does not have a presumption in favor of equal access rights. However, he notes that most of the younger judges he appears before typically start with the assumption that post-divorce custody will be equal, and this is generally how matters play out in the state.

He adds that if he is representing a client who travels frequently, leaves home early in the morning, or has evening obligations that make exercising custody difficult, he advises them against initiating discussions about equal entitlement, as they would likely be unable to exercise it effectively.

He observes that this guidance works in most cases, except for the occasional client who worries that their spouse will resent pursuing equal access rights, potentially affecting claims related to other assets. In response, he emphasizes to these clients that custody should never be treated as a bargaining chip and that it is not a tool for negotiating other financial matters.