Can a Father Win a Custody Battle?

In a divorce or separation, the foremost issue is typically that of child custody and visitation. Parents always want what is best for their children and want a parenting plan order that reflects that. In some situations, the father of the child or children may believe that he can provide a more suitable home environment for the children than the mother. Although some people seem to believe that a father cannot win a custody battle, this is not the case.

A determination of child custody or visitation is made based on what is in the best interest of the child. In New Jersey, the best interest factors can be found in NJSA 9:2-4. The list of potential factors is long and not exclusive, meaning the court can consider any other set of facts that the court may deem relevant. It also means a parent seeking custody does not need to prove each of the elements, just that those are relevant and important factors the court will consider. Notably absent from the list of best interest factors is that the mother or father has an automatic advantage. In fact, the sex of the parent seeking custody is not a factor at all.

In the past, the mother has typically been the one to stay at home with the children and has been the primary caregiver for the children. This is why historically the mother was typically the one awarded primary custody of a child while the father received visitation. However, times have changed. There is no preference in the law to award the mother custody, particularly if the father has been the primary caretaker.

Even if the mother has traditionally been the primary caregiver, this does not mean that a father cannot obtain primary custody of the children. If the mother is unstable or has no ability to provide a safe home for the children following the separation, this could mean the father would win custody. However, even if the the mother is not unstable, the law has determined that it is in the child’s best interest to have a continuing relationship with both parents. Stability is a paramount consideration for children, and the court will place heavy emphasis on a parent’s ability to provide it. However, absent substance abuse or untreated mental health issues, a father can be designated as the custodial parent if the circumstances warrant it.

If you are facing a custody battle, you need the help of an experienced attorney. Call us today at (732) 529-6937 and we can talk about your children and how to protect their best interests.

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