How The Courts Fail Children By Failing Fathers
In NY, custody decisions are based on what’s in the best interest of the child. However, “Best interest” is very broad and leaves a lot up to the individual family court judges.
While technically the law shows no bias against fathers, the individual bias of judges, referees, attorneys, and litigants play a part in skewing most custody cases in favor of the mother.
In the vast majority of divorce and family law cases I handle in NYC I find the judges to be relatively fair and they don’t seem to have overt biases against fathers. Despite this, there are still several things that make it more difficult for fathers to obtain custody or even joint custody of their children.
Mothers Are Presumed Primary Caretaker
In most cases, the mother is presumed to be the primary caretaker by all parties involved. Especially for young children, it’s assumed that Mom takes care of the day to day needs.
And even though that is not always the case, Dads have to jump through hoops to prove otherwise.
Another issue is typically when a couple breaks up or a child is born outside of a relationship, the child primarily resides with the mother. Again, due to presumptions and biases ingrained in the parties, children typically live with Mom and visit dad- even if Dad cared for the children just as much as Mom and when they were together.
This is even worse for fathers of infants and toddlers. They are often prohibited from overnights with their children without court intervention and even when the court is involved the burden is on them to prove it’s safe for the child to stay overnight at their home.
Determining the primary caretaker is an important consideration in determining the best interest of the child because the court prefers to maintain the status quo whenever possible. Though many fathers equally care for their children, the mother is often still considered “primary caretaker” which is unfair to involved fathers.
Delay in Filing
A mistake many fathers make is waiting to file a petition for custody and visitation. Again, the courts are in favor of keeping the status quo. If you let too much time pass, it will be difficult to change the parenting schedule. As soon as your relationship with the mother is over, you need to immediately establish your rights.
Biased Lawyers
Another problem I frequently see is biased lawyers. Lawyers who tell their clients that moms automatically get custody and dad should only get a few days. I’ve seen lawyers on both sides with this mindset.
This person bias against fathers is not only inaccurate but dangerous. So much litigation could be avoided if attorneys representing mothers advised them that dad is also a parent and has rights. And many fathers hire lawyers thinking their interests are being represented when the lawyer tells them to just accept the limited time.
For fathers, the key to overcoming this is to talk to several attorneys and hire one that believes involved and active fathers deserve more than just a few nights a month.
Pro Se Fathers
An even bigger problem than having the wrong lawyer is having no lawyer. I can’t tell you how many fathers I talk to each week who go to represent themselves in court and the judge won’t let them even speak.
Father’s have additional hurdles to overcome, so ensuring your side is heard is paramount to getting the outcome you are seeking. Having an attorney speak on your behalf can help you be heard.
How To Give Fathers A Better Chance At Custody
As a family law attorney, the best thing I can do to help change this system is to work every day to change these stereotypes by showing the court and the public that fathers are just as invested in their children as mothers.
This is why it’s important for fathers to fight, even if they don’t think they will win. So that they can show their children that despite the system, they did everything in their power to remain an equal parent.
It’s also important for fathers to be educated about their rights. Many fathers just accept the notion that they are only entitled to 4 nights a month (every other weekend) with their children and don’t realize they can get more time if they fight for it.
The best things you can do as a father who is seeking sole or joint custody is to remain an active part of your child's life. Go to playdates, doctors appointments, and parent-teacher conferences. Get court intervention early on. If the children get used to not seeing you often and you have that schedule for a long period of time, it can be difficult to get the court to change.
If you are a father who wants more information on how to protect your rights as a father in New York, contact me today to discuss your options.
