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The Fight for Fathers – How to Obtain Sole Custody in New Jersey

Consulting Services in New Jersey

Going through a divorce can be emotionally draining on both parents involved, but divorce can be even more traumatic on children.  Because children are vulnerable,  especially at such a young age, it is important to remember that the best interests of the child are the most important factors when determining which parent gets custody of the children.

Father brushing young daughter's hairOftentimes, both the mother and father will have joint custody of their children.  This is a typical custody arrangement for divorcing parents.  However,  there are situations where joint custody is not the answer.  Perhaps one parent is not capable of caring for the children the way the other parent can.

Fathers typically have a harder time convincing a court that they deserve sole custody of their children.  Fathers have an upward battle and will need legal guidance in proving that the mother of the children is simply unfit to have sole custody.

New Jersey Custody Courts

In New Jersey, as in most states, courts will look to ensure that a child’s best interests are considered.  There are two types of custody:

  • Legal custody
  • Physical custody

What Does Sole Legal Custody Mean?

Legal custody allows a parent to make the important decisions in a child’s life, such as where the child goes to school, what medical treatment the child receives and all other major life decisions that parents face for their children.

Sole legal custody is unusual, and judges will only grant sole legal custody in situations where:

  • The parent is unfit.
  • The parent is unavailable.

What Does Sole Physical Custody Mean?

Sole physical custody in the state of New Jersey can be considered “sole residential custody.” Fathers that are granted sole custody will be the parent that the child(ren) reside with for the majority of the time.

A sole physical custody agreement means:

  • Children spend less than 2 full nights with the non-custodial parent.
  • Children may spend vacation or holiday time with the non-custodial parent.

The child(ren) will have the right to see their mother in accordance to the court’s decision.

New Jersey law treats mothers and fathers equally when determining custody arrangements.

To obtain sole custody, a father must prove that the mother is unfit in some way.  Perhaps the mother is abusing drugs,  alcohol, is physically abusive, mentally incompetent or financially incapable of caring for the children.

If you are a father who feels you are the best parent to have sole custody of your child(ren), you are not alone.

While courts must remain impartial, mothers tend to get sole custody when there is a custody dispute because mothers have an easier time proving that it is in the best interest of the child for the mother to have sole custody.

If you are a father and you have a child that is a teenager, your child may be able to speak on his or her own behalf, and make the decision of where and who to live with – the mother or the father.  If your child is relatively young, a court will likely make the decision regarding custody after looking at all factors.  Regardless of the age of the child(ren), you should consult with an experienced family law attorney so that all factors can be considered.

Increasing Your Chances of Sole Custody

Sole custody granted by a court is only done in exceptional circumstances. The court often finds it in the best interest of the child(ren) to have a relationship with both parents. Fathers that would prefer sole custody need to demonstrate:

  • Sole custody is in the best interest of the child(ren).
  • The environment where the child(ren) will live will be in their best interest.
  • You’re active in your child’s life.

New Jersey still factors in the “tender years doctrine,” and this is a concern. This doctrine is an old doctrine that was changed into the “best interests of the child” in New Jersey, which was thought to be progressive. The issue is that these “tender years” still hold weight in a judge’s decision on custody of the child, and this is why so many mothers are granted custody when everything else is equal.

Fathers need to be able to demonstrate that they’re involved in every way possible in their child(ren)’s lives so that this can be factored into the custody agreement.

Courts Account for Deficiencies

The Stewart v. Willey is a prime example of the court’s accounting for parental deficiencies when trying to determine custody. The case involves a father that was stationed overseas and separated from his wife.

The couple’s son has a speech delay, which was diagnosed by a doctor.

The father and mother were amicable and agreed on joint custody, but the fathered learned that the mother did not provide the child with the proper help to overcome his speech issues. The father filed a motion to change the custody agreement to gain sole legal custody of the child.

New Jersey’s Appellate Division demonstrated how difficult it can be to change a custody agreement and gain sole custody of the child. The division found:

  • It would be in the best interest of the child to have his mother around.

The case ended with the joint custody agreement standing, and the mother was able to have an influence in major decisions for the child. But the father was granted “sole responsibility” of the child when it came to health-related decisions.

In effect, the court believed the mother was unfit to make medical decisions on behalf of her child, but the child would still benefit from a joint custody agreement.

The stakes are too high to go through a divorce and custody proceedings without help.  Fathers have a tough enough time as it is,  so the chances of obtaining sole custody without the help of an attorney are lower.

Sole custody is seldom granted unless in unique, rare situations. An attorney can help you determine if sole custody is viable, and help you through the legal struggles involved with custody agreements in New Jersey.

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