Custody of children is one of the most difficult issues facing litigants and attorneys. In New Jersey, there are statutory factors that are applied by a court in order to determine an appropriate award of custody. One of the most telling factors in determining custody is the extent and quality of time spent with the child prior to or subsequent to the separation. Put more simply, the question becomes less about why mothers usually get custody and more about what is the history of custodial responsibilities for the child? During the course of the parties’ marriage, and after the birth of a child, certain duties are undertaken by each party.
“Is there any legal reason why fathers should not be awarded custody of their children just as often as mothers?”
Traditionally, the mother remained at home to care for the child while the father continued to be employed outside of the home. The mother, under these circumstances, became “fully employed” as the child’s caretaker — responsible for feeding, bathing, dressing, and chauffeuring the child; scheduling and taking the child to doctor and other appointments or social activities; arising to attend to the child at night; and so on. The mother’s job, therefore, was to care for the child. The father may have assisted in some of these tasks, but it was not his primary responsibility. In these cases, when the parties have set their respective roles, the father will have a difficult time convincing a court that he should be granted custody of a child. On the other hand, if the father has assumed the “traditional” role at home, and the mother has assumed the “traditional” role of breadwinner, then a father’s role should be given weight when reviewing the statutory factors.
In recent times, more and more children are faced with two parents who are working full time outside of the home. These children, during the workday, may be in the primary care of a third party — whether that is child-care outside of the home, school with wrap-around programs, or nannies. In other words, it would appear that a third party has assumed some of the duties of the “stay-at-home parent.” Nevertheless, the analysis is the same: it must be determined which party is primarily responsible for the care-taking duties mentioned above. If parties share these duties equally, or if a father is primarily responsible for them, then an award of custody to a father may be appropriate.
Lizanne J. Ceconi is a founding member of the Summit, NJ law firm of Ceconi & Cheifetz, LLC specializing in family law. She is the Second Vice-Chair of the New Jersey State Bar Association Family Law Section and lectures frequently on issues affecting family law matters. She can be reached at (908) 273-6300.View her Divorce Magazine profile.
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