New York's Domestic Relations Law § 240(1) clearly states that:

                    "In all cases there shall be no prima facie right to the
                            custody of a child in either parent." 

Bascially, no parent, at the outset of a divorce matter, should be deemed preferential over the other parent.  Many fathers thinking about divorce or going through the process do not realize that they are not without rights to seek custody, just as their spouse does.

Thus, a judicial presumption in favor of either parent in making an initial custody determination is explicitly forbidden by statute and is contrary to the practice of awarding custody of young children to mothers as a result of a "tender years" presumption.

In fact, the Court noted that the application of "the tender years presumption" in favor of the mother would deprive a father of his right to equal protection under the Fourteenth Amendment to the United States Constitution. In condemning the "tender years" presumption in favor of the mother, the Family Court of New York County stated as follows:

        "Apart from the question of legality, the ‘tender years presumption’should be
        discarded because it is based on outdated social stereotypes rather than on 
        rational and up-to-date consideration of the welfare of the children involved. 
        The simple fact of being a mother does not, by itself, indicate a capacity or 
        willingness to render a quality of care different from that which the father can 
        provide."

Moreover, the Court noted that: 

        "[S]tudies of maternal deprivation have shown that the essential experience 
        for the child is that of mothering – the warmth, consistency and 
        continuity of the relationship, rather than the sex of the 
        individual who is performing the mothering function."

Therefore, rather than base child custody in a divorce matter upon outmoded gender steretypes, the Courts in New York analyze the case by asking themselves - "What outcome herein is in the best interests of the child(ren)?"  There are numerous factors underlying the "best interests" analysis each with their nuances and arguability.  As such, when attempting to determing your best legal strategy in seeking custody or even the best possible visitation scenario, it is always best to retain an attorney and allow them to lay out the groundwork for you.