Well, in New Jersey our statute presumes that there’s no preference by gender for one parent to have custody over another. Fathers are just as entitled to have custody as are mothers. But generally speaking, courts are going to look at what the life experience was of the child prior to the dissolution of the relationship and the marriage before deciding what is appropriate for custody. Now any time that we start a custody case, as attorneys, we always ask our clients what was going on in the life of your home, of your children in your home, before you and your spouse decided to separate? Who was doing the daily activities of cooking breakfast, helping with homework, getting the children up and dressed, getting them off to school, getting them home in the afternoon, doing homework, and going over the day’s activities? And there’s often a discrepant view of who did what in the relationship. Many times parents just simply don’t agree.
One parent thinks they did far more than the other person will acknowledge. So, we have that as our starting point, but at any time that you have an addict parent coming into a custody dispute or any type of litigation regarding the divorce, and his or her access to the children is brought up, the court is going to want to know is there a concern for safety? Safety is the paramount concern for any court dealing with children, whether it’s in the course of the divorce or post judgment. So, if you bring before the court the concerns about the other parent being an addict, the court is going to know what is the status of the addiction? Is it in remission? Is the person in recovery? Are the concerns for the parent’s ability to take care of the children, something that is simply being exploited by one parent, or is it something that’s a viable concern that the court needs to be doing something about?
So, those concerns are always going to be at the forefront of the litigation, and in my experience, I know that fathers do get custody in those circumstances where the mother is impaired even if the father was not the primary caregiver during the marriage. So, even though we start by asking who was the primary caregiver and the father may be at a disadvantage for custody if he did not serve in that role, as soon as we know that there’s an addicted parent and that parent is the mother, the father has a much greater opportunity to secure custody if the children are at risk in the care of the mother.
Allison C. Williams is a matrimonial and family law attorney serving Short Hills New Jersey. Her practice places an emphasis on complex child welfare matters. www.familylawyersnewjersey.com