Too many times I've seen fathers try to prove that the woman was a "bad mother". Experience has shown that these cases do not turn on who is "good" or "bad." They are decided by proving what is in the best interest of the children. The courts have recognized that fathers have the exact same rights as mothers (whether or not they were married to the mother) when it comes to obtaining custody. However, to be successful, a parent must demonstrate that their commitment, as well as their proposed plan to care for, nurture and raise the children, is superior to that of the other. But custody doesn't have to be all or nothing. It is important to note that there are two types of custody. The first is physical custody that defines where the children reside. The second is legal custody, which involves making decisions regarding the children’s health, education, and general welfare.
It is sometimes possible for there to be joint physical custody, where the children reside equally in the respective homes of their mother and father, joint legal custody, where the parents agree to mutually make future decisions concerning the children, or any combination of the above. However, when these options are not advisable, or practical, one parent will often be given sole physical and legal custody. If you noticed, I said one “parent”, not automatically the mother. Fathers can be, and often are, given custody of even very young children. Throughout this difficult time, you must realize that it is not about you, it is not about your wife, it is simply about what is best for your children and the quality of your relationship with them. You can be successful, and you will be successful if you can convince the judge that it would be in your children’s best interest for you to be their custodial parent.
Steven Mandel is a Manhattan divorce attorney and principal of the Law Firm of Steven J. Mandel.