There is a short and a long answer to this question and to help you, we’ll try and give you both!
The short answer is that although courts nowadays will always put the child’s interest first, this will mean that the likelihood is that their mother is most likely to get custody. But that doesn’t always happen….
The historical pattern is that the mother was usually seen as the more appropriate of the two partners to be awarded custody. There are several reasons for this. In the traditional household, as recently as fifty years ago, there was the concept of the man as breadwinner and the woman as home maker and the chief caregiver for the needs of the household – cooking, cleaning and child care. The husband was, of course, the person responsible for providing the wherewithal on which the family to lived.
Consequently, not many fathers even bothered to file for custody, as they automatically assume that the process of the law would go against them.
Times have of course changed, and the legal situation has reflected the changes that society has brought about. A new study published by the Pew Research Center reveals that mothers are the sole or primary provider of income in a “record 40% of all households with children under the age of 18″ in the United States. Mothers are working outside the house and the fathers are becoming the caregivers.
There is no built in preference for the mother in custody laws. No custody laws in the U.S. give mothers a preference or additional rights to custody of their children.
Again the needs of children are, or should be, paramount. With very young children, such as babies or infants, the mother’s role in breastfeeding through the night may be the cause of at least temporary arrangements for primary custody. When an infant is being bottle-fed and the father has shown interest and competency to do this, then his claims will be viewed with equal sympathy. Judges will make decisions on a case-by-case basis rather then having an automatic preference for the mother.
Even though the law has no gender bias, the criteria of the “best interest of the child” will more often then not still see the mother being granted custody. Putting bad feelings aside, most parents (of both sexes) would agree that these criteria are correct. The divorcing father should not be discouraged, however. He should look further into the factors that make up “the best interest” and see where he fits into the picture. Does he have parenting skills? Is he, rather then his wife, more willing to accept responsibilities? How much caring has he actually done?
Think of all the tasks associated with parenting: feeding, bathing, playing, waking and putting to bed, making doctor appointments, arranging for child care. Fathers seeking custody need to become active players in these areas and be truthful of the nature of the bonds that exist between them and their children.
The Micklin Law Group, LLC is a New Jersey law firm specializing in family law and estates. Attorney Brad Micklin was recently named to The National Advocates list of Top 100 attorneys from each state. To set up a consultation, call 973-562-0100.