Not since the 1970s has New York judges presumed that moms should be given custody of children in divorce cases. A maternal preference no longer exists officially, but some courts may still have an unconscious bias that benefits moms.
Our attorneys at Samuelson Hause PLLC vigorously fight for fathers’ rights in child custody cases.
Violation of Equal Protection Clause
Family Court Judge Sybil Hart Kooper rejected maternal preference in a 1973 ruling. In her custody reversal, she wrote that “Apart from the question of legality, the ‘tender years’ doctrine presumption should be discarded because it is based on outdated social stereotypes rather than on rational and up-to-date consideration of the welfare of the children involved.”
The judge continued, “The simple fact of being a mother does not, by itself, indicate a capacity or willingness to render a quality of care different from that which the father can provide.”
A presumption of any gender being the better parent violated the Equal Protection Clause of the U.S. Constitution. Instead of the Tender Years Doctrine, the judge considered only the best interests of the children. The father was awarded custody.
Best Interests Principle Replaces Tender Years Doctrine
By the 1990s, 39 states had eliminated maternal preference in custody cases. Today, all states have gender-neutral laws.
The Tender Years Doctrine was imported into this country from England. A mom and British socialite, Caroline Norton, was denied custody of her children in her bitter divorce 1835 divorce. Women had no legal rights at the time. She took on the cause of maternal rights, effectively lobbying British Parliament to pass the Custody of Infants Act of 1839. Mothers were presumed to be granted custody of children younger than 8 years old and then extended to age 16.
Since Kooper’s 1973 ruling, New York judges have made custody decisions based on what is in the best interests of the child. The ability of each parent to meet the child’s needs is evaluated.
Judges consider man factors in determining what is best for the child. Some of those elements include the following:
- Stability
- Child Care Arrangements
- Mental Health of the Parents
- History of Drugs/Alcohol
- History of Domestic Abuse
- Conditions in the Home Environment
- Courts Observations
The child’s preference may also be considered, particularly if the child is older than 12.
Potential for Bias Remains in Custody Cases
The best interests of the child have been the governing principle in child custody disputes in New York for almost 50 years. However, judges are not robots that are programmed. A judge might potentially have an unconscious bias through which they evaluate “best interests.”
At Samuelson Hause PLLC, our attorneys have extensive courtroom experience in asserting why a father should be awarded child custody. To overcome an unspoked prejudice, fathers must demonstrate how they are invested in their children’s lives. They are active at their children's schools, attend athletic or artistic events, and support the children in having a meaningful relationship with their mom (unless the mother is unfit). The father should take the high road, staying civil to their former spouse.
The judge should see the following characteristics in the father:
- The father is nurturing.
- The father and child have an emotional connection.
- The father can provide a loving and appropriate environment for the child.
- The father is willing to work with the mother to support their child’s well-being.
- The father prioritizes the child, and his work will not negatively impact the child.
- The father has established a strong support system.
Character testimony from friends, co-workers, and relatives is often helpful. Depending on the specifics of the case, the mother’s work and travel schedule can be used to show that the father has just as must time to commit to raising the child.
Support for Fathers Fighting for Custody
Dads have the same rights as moms to pursue sole or joint custody. If you are a father in a dispute about child custody with your ex, the way your case is presented in court is critical. Our attorneys understand what a judge is looking for when analyzing custody. We present a thorough accounting of your parenting abilities and best position you for the custody you seek.
Schedule a consultation with us to learn more about your rights as a father. Send us a message online or call (516) 584-4685.
