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Impediments Dads Face When Requesting Emergency Custody

The Micklin Law Group-Impediments Dads Face When Requesting Emergency Custody

Brad Micklin’s webinar series has helped men and fathers in New Jersey understand divorce and family law for years. Recently, Brad decided to present a webinar answering a few of his followers’ questions about emergency custody of children. In case you missed the webinar, here are Brad’s answers to these questions. This post focuses on two of the biggest challenges fathers face during an emergency custody issue. Don’t miss our other blog posts that answer more questions about how emergency custody works.

Are men at a disadvantage in child custody cases? 

This is hard to answer. Obviously I have a bias because I do men’s and father’s rights, so I see a different selection of people than maybe representative of the general population, but I would have to say yes, I do believe that men are currently at a disadvantage when seeking custody. Particularly with primary custody, when they’re looking to be the parent that the child resides with the majority of the time (if not all of the time), that role has generally been reserved for mothers.

I often say to clients that it’s my opinion the laws are changing, but the attitudes are not. So while you have a presumption in New Jersey, for instance, that both parents should have as much time as possible, that resulted because the law proposed to give the presumption of equal custody to both parents was denied. Now, that’s obviously legislative and not judicial, meaning it’s done by the Senate lawmakers and not by judges. But I think that’s a very significant message that is being presented, especially in what seems to be a liberal state like New Jersey, that the state representatives were not willing to codify a law that says fathers have equal rights to time with their children. I personally think it’s a shame that they were not willing to make that kind of a finding. Nonetheless, it’s still an advancement. 

I’ve come to believe recently that law is more of an evolution and not a top down policy result, meaning men don’t have equal rights, not because the judges have said before you’re not going to have it, but because over time they’re taking on new roles. So historically, men – and I’m sorry to be gender specific – but historically men worked out of the house and women often stayed home and raised children. Now, looking at father’s rights from a legal evolutionary standpoint suggests that equality is coming. You know, we used to have a period, even when I started practicing about 22 years ago, when men never got equal custody and certainly never primary custody. Now we’re seeing that we have laws that say they should have as much time as possible. It’s certainly a progression from what I call the “traditional view” that they should have every other weekend at best. So, we’re getting there, and I think as time progresses, we’ll certainly get closer and closer. Hopefully inside of my career, I’ll see where men are presumed to be equally fit custodial parents and women are then required to prove their fitness. Not to say I have anything against women or mothers, but I think just like all areas where there’s been severe prejudice, that undoing that sometimes takes an approach that reverses it and gives power to the people who were subject to the prejudice in the past.

Do you have to follow your current custody order if you feel your child is in danger? 

As an attorney, I always have to advise my clients that you have to comply with court orders. It is unethical for me to suggest otherwise. I also believe that I am ethically obligated to explain to the clients the ramifications for being in contempt of an order or not complying with the order. And that can be various remedies: if you are not complying with an order, you could lose custody, you could be incarcerated, you could be sanctioned, and many other remedies. You have to balance that risk against what you think the risk of harm to your child is. 

If you do intend to disregard my advice and not comply with a court order, be aware that you’re subject to those. In fairness, I do have to say in my decades of experience, I have not found the family court to be overly zealous in enforcing its court orders. I’ve seen time and time again that the courts, they just don’t put teeth in enforcement of their orders. And if people are dead set against complying, there’s often not harsh ramifications. Therefore, I believe I’m obligated also to advise people what to expect. And frankly, that is not much. 

Don’t take that as me saying you can disregard court orders without repercussion, because I’m certainly not saying that. Every judge is different. Every circumstance is different. Just like I said in an earlier question, the law evolves. While they may not be as harsh in enforcement today, we don’t know what tomorrow brings. So you’re always taking a risk of sanctions, of loss of custody, and it could even hurt your child. You know, rash decisions often upset children who are put in the middle of it; it can often upset their stability and their schedules, their consistency. So there are a lot of things you need to consider, but the long and short is that you have to follow court orders regardless, and that’s why we have an emergency process. If there’s something that needs to be addressed that conflicts with what the court orders you to do, you can get to court quickly. 

It’s not so challenging to file something on your own, and the courts will address it that very day. So there’s really no reason to disregard a court order, other than maybe at night or weekends or when there’s an issue where you can’t get to court. There’s little reason why you would have to violate a court order because there are processes available. 

As I tell all my clients, family law is not a nine to five job; it’s five to nine. Especially with emergency custody, the issues often arise on a Friday night, Sunday morning, or Christmas Eve; this is when you need to reach your lawyer. Myself and my associates are always available in those times of need. If you need assistance with an emergency custody issue, you can contact us here.

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