Divorce is hard on everyone, especially children, so it’s important to remember that family law judges are required to put the interests of the children above all else when resolving a custody dispute. While joint custody of the kids by both parents is increasingly common, there are times when a father is a better custodial parent than the mother.
But convincing a court of this can be an uphill battle for fathers, but we are winning the fight successfully for a growing number of dads. Proving that the mother is simply unfit to have sole custody is difficult, but not impossible. Most common, we can do this if the mother abuses substances such as drugs or alcohol, if she is physically abusive, or is financially incapable of caring for the kids.
Meeting Conditions for Custody
While the judge in a father’s custody battle in New Jersey must remain impartial, mothers frequently are granted sole custody of the children in a custody dispute because it’s easier for women to prove it’s in the best interests of the child.
But because judges and the law have a bias towards joint custody, overcoming the traditional “tender years doctrine” requires a father seeking sole custody in New Jersey to demonstrate four things:
- You have been active in the children’s life.
- The father having sole custody is in the best interests of the children.
- The environment in your home will be better for the kids than if they lived with their mother.
- The mother is unfit because she uses drugs, drinks heavily, is physically or emotionally abusive towards the children, or lacks the financial wherewithal to take care of them even with child support payments from you.
The first point is extremely important to a judge. “Helicopter fathers” who dip in and out of their kid’s lives and are involved only occasionally in things such as doctor’s visits, meetings with teachers, watching them play on teams, or attending concerts or recitals may not have their request to be the sole custodian of children taken seriously when a judge is issuing in a decree order.
Legal and Physical Custody
There is a technical but important difference between legal custody and physical custody.
Legal custody enables a parent to make important decisions in the life of their children. This includes where they go to school, what medical treatment will be given to the child when they are ill, whether or not they participate in a religion, and all of the other major life decisions parents must make for their kids. Legal custody may be shared between you as the dad and their mother after a divorce. Sole legal custody is unusual. Judges grant it only where one parent is unfit or unavailable.
In New Jersey, sole physical custody defines who the children live with most of the time. It means that your children spend two full nights a week or less with the non-custodial parent, such as a Friday and Saturday during a weekend visit. But they may spend more time with their mother during school vacations or over longer holidays such as the winter or spring break.
You’re not alone if you’re a dad who feels you will be the best parent to have sole custody of your children. And except when your children are young, judges will ask them where they want to live. But regardless of their age – be they preschoolers or teenagers – you should discuss your goals and desires with a family law attorney who focuses on helping men and fathers through a divorce and custody issues.
Deficiencies in Parenting
A New Jersey court decision provides a benchmark in how a court looks at whether a parent is acting in the best interests of the children.
A father who was divorced and lived overseas was concerned because his ex-wife was not providing treatment for their son’s diagnosed speech delay. He filed a motion to change the custody agreement to gain sole legal custody. But while the appeals court found it was best to have the mother in the child’s life, it ruled that the father should have “sole responsibility” for making health-related decisions.
In effect, the court decided that the mother was unfit to make medical decisions but the child would benefit from the existing joint custody agreement.
Helping Fathers Like You
The stakes in any divorce and custody proceeding are too high to go through it without help. Fathers have a tough enough time in a divorce and the likelihood of obtaining sole custody without the help of an attorney who understands men’s issues is low.
The key thing to keep in mind is that sole custody is seldom granted to a dad unless there are unique and usually rare situations. An attorney can help you decide if seeking sole custody is a viable option, and work with you through the legal struggles involved in New Jersey custody arrangements.
For divorced fathers in New Jersey, if you or someone you know is approaching a divorce and want custody of your kids, please call our family and divorce lawyers at either of our offices in Nutley or in Montclair. I can help you get a judge to understand why you should have custody.
