The Gender-Based Custody Myth: Divorce Lawyers In New York Debunking the Misconception that Courts Invariably Award Custody to the Mother
I see many clients that ask me about a common misconception that mothers (rather than fathers) will automatically be awarded custody of a child (or children) in a family or matrimonial court action. In actuality, however, judges base their decision on a wide range of factors which have, over the years, consistently proven to be good indicators of the “best interests” of the child or children – none of which include the gender of the parent. Experienced divorce lawyers in New York will tell you that the factors judges consider in a “best interest” analysis are derived from common sense, with the underlying inquiry being: which parent will provide the child with the most stable and nurturing environment? Often, if the child is still in his or her infancy, a judge might determine that the “best interests” of the child will best be served by staying with its mother – if, for example, the child is still reliant on its mother for feeding.
However, if the father has consistently been the child’s primary caretaker leading up to an impending custody court date, a judge might decide that maintaining the status quo would provide the child with the most stability and, as such, award custody to the father. If the child is older and the judge deems him or her capable of making a mature decision, the court also has the discretion to consider the child’s wishes when deciding a custody arrangement. It is important to be informed, however, that no matter which parent ultimately has custody of the child, the other parent will almost always be entitled to a reasonable visitation schedule – no judge wants to unduly limit a parent’s access with their child. Many divorce lawyers in New York will advise their clients to negotiate when it comes to physical custody to avoid a drawn out custody battle in court in favor of their clients getting ample time with their children through parental access and joint decision making.
Another important factor the court will consider is the age of the children. While the law is certainly not biased, most divorce lawyers in New York will tell you that judges weigh the age of the children and their development heavily in favor of the mothers when it comes to newborn babies, toddlers and very young children. Again, this is not to say that the court will not consider the individual facts of each case and the fitness of each parent, but generally, the judges lean towards preserving the physical relationship between mother and their young children.
It is important to know that, as a matter of policy, judges prefer that parents decide on their own custody and visitation arrangement outside of court with the aid of their respective attorneys. As divorce lawyers in New York we advise considering the invariably emotional and often contentious nature of custody cases, it is always best to consult with a neutral third party with experience in this area, such as an attorney or mediator, who can help you hone your strengths as a parent and buttress your arguments for trial with the right kind of proof.