States abandoned giving preference to mothers in custody disputes involving young children 50 years ago, but unconscious bias still exists. Fathers are often still seen as less capable of providing for a child’s emotional well-being.
Child custody is a sensitive element of divorce and can become quite adversarial in contested divorces. Fortunately, a negotiated resolution is found outside of court most of the time. According to the Matrimonial Practice Advisory and Rules Committee, of the more than 55,000 New York divorces in 2019, only about 11,000 divorces were litigated in the courtroom. For those divorces that do go to court, fathers wanting legal and physical custody of their children need an attorney with proven strategies to help overcome potential discrimination.
History of Tender Years Doctrine
Divorce laws today guide judges to make their child custody decisions based on the best interests of the child. But it wasn’t always that way.
The Tender Years Doctrine is a principle that was used in the United States during the 19th and much of the 20th centuries. Our nation’s connection to Britain influenced its use here. Caroline Norton began a campaign for women’s rights after she lost all access to her children in a divorce. At the time, British men were given custody of the children as women had no legal rights. She lobbied British Parliament, convincing them to pass the Custody of Infants Act of 1839. The law allowed mothers to petition for custody. The act’s application evolved to presume mothers should be given custody to those 7 years and younger. That presumption was extended to age 16 in 1873.
As more women entered the workforce in America and groups argued against the doctrine’s inherent unfairness, custody laws began to change. In the latter half of the 20th century, states began to repeal custody laws that favored the mother. Some courts determined that such a practice violated the Equal Protection Clause of the U.S. Constitution.
Evidence of Continued Bias Against Fathers
New York law requires judges to determine custody based on the best interests of the child. The problem lies in that there is no definition of “best interests.” The court is given the latitude to determine which parent can most adequately care for the child. Because mothers were given preferential treatment for much of the last 150 years, judges may still unknowingly have a bias.
The stereotypes of the father as the breadwinner and the mother as the caregiver persist in many courtrooms. Fathers must prove the mother is unfit before he is given primary custody.
Negotiated divorces can also be tainted by prejudice. Fathers mistakenly believe their rights are limited and agree to less time with their children than they would like.
An experienced attorney at Friedman & Friedman PLLC, Attorneys at Law can help Westchester County dads understand all their legal rights related to child custody and visitation.
Overcoming possible judicial bias in custody decisions can include the following:
- Show evidence that you are an active parent by taking an interest in the child’s daily activities and participating in school activities
- Offer respected character witnesses who can vouch for your love, dependability, and care as a father
- Present evidence of an emotional bond between you and the child
- Outline how you will offer adequate living accommodations for the child
- Treat the other parent respectfully and show a willingness to work with them
Taking on Bias in Child Custody Cases
Co-parenting and shared custody arrangements are increasingly common. Unless there are factors that show otherwise, a child should be encouraged to have a relationship with both parents. However, an attorney must often fight for a father to be given the same consideration in child custody matters.
Our legal team at Friedman & Friedman PLLC, Attorneys at Law fully understands the importance of advocating for fathers in Long Island and Westchester County. If you are a father who is seeking custody, speak with one of our attorneys about your case. We will fight for you to spend time with your children and to make parental decisions for them.
Understand your rights as a father in a free consultation with an attorney at our firm. Contact us online or by calling (914) 873-4410.