Statistics show that courts award custody of children to fathers somewhere between 11 and 15 percent of the time. In New York, many years ago, there used to be a presumption in the law that moms should have custody of young kids. This was called the “tender years doctrine”. The tender years doctrine was repudiated by New York Courts a long time ago, but fathers still usually have a very hard time getting custody.
Occasionally, a father would like to get custody, but for various reasons this is impossible, and there are serious issues regarding the mother’s parenting. In these situatiosn it may make sense for a paternal grandparent to file for custody.
This article is intended to give only general information about New York custody law, and is not intended to be actual legal advice. Since every situation is different, legal advice can only be given during a consultation with an experienced child support attorney. Keep in mind that laws can differ in other states.
Fathers should keep in mind that custody battles are typically very long and expensive. Mothers almost never give up and most will fight relentlessly to keep custody, including filing multiple appeals and coming back to court over and over for years.
Mothers sometimes fight even harder because they are afraid that they will lose their child support payments, and may even have to pay child support to the father.
Fathers Are More Likely To Be Awarded Custody When Children Are Older
In many situations, older children prefer to live with their fathers. Under New York Law, while a child’s preferences about who he or she wishes to live with are not dispositive, they are giving more weight when children are mature teenagers, and some Family Court judges give the wishes of these older children a great amount of weight in their decisions.
Fathers Are More Likely To Be Awarded Custody When They Are Married
In my experience, if fathers are married to mothers, are financially well off, pay their child support orders in full, have beautiful homes with a great school nearby, and hire premier law firms, they are more likely to win custody of children. In these situations, most courts are willing to at least order forensic custody evaluations, and if the evaluator recommends custody to the father, he will have a decent chance of winning custody.
If fathers don’t have a job and are broke, haven’t been paying child support, or live in a shelter, it is unlikely that a New York Court will award them custody, unless the mother has very serious issues.
Fathers Are Much More Likely To Win Custody If Their Children Have Already Been Living With Them
Sometimes, before any case has been filed, parents will make an informal agreement that a child or children will live with their dad temporarily. This is most common when the parents are separated and the public schools in the father’s school district or zone are superior to the schools in the mother’s district or zone. Typically, the parties agree that the child will live with the father for a year or two until the child finishes elementary school or middle school.
What often happens is that after the year is over and the mother asks to have the child or children back, the father refuses and the parties end up in court. In these circumstances, I have found that fathers are very likely to win, unless the child is older and expresses a strong preference to live with the mother. New York courts are, in general, quite reluctant to change custody from one parent to the other if things have been going well.
Mothers Almost Always Win Custody When Children Have Already Been Living With Them
The number one reason why mothers get custody between 85 and 89 percent of the time is that when the parents split up, the child or children initially go with the mother. If the child or children have been living with the mother, even if it is for a month or a few months, the courts will be reluctant to give temporary custody to a father, and the longer the child or children stay with the mother, the more likely it will be that the court will end up granting the mother a final order of full custody.
Sometimes parents live together while their divorce case is going on. In these situtions, fathers have a better chance of getting custody, as the legal standard is just “best interests” of the child or children.
Fathers May Have To Prove That The Mother Is Unstable Or Unfit In Order To Win
If the child or children has been living with the mother for a period of time, especially if there has already been a final order of custody, sometimes the only way a father can win is to prove that the mother is either unstable or unfit. Unstable does not mean just having moved a couple of times. Unfit means that the mother is using drugs, is an alcoholic, has court findings of neglect , has multiple arrests and convictions, doesn’t take the child or children to doctor appointments, or the like.
Fathers will have the burden of proof of instability or unfitness, and proof in the courtroom requires evidence, not just allegations. Evidence can be testimony from witnesses and sometimes various documents. Getting documents into evidence sometimes requires in depth understanding of the rules of evidence, which is possessed only by judges, law professors, and experienced trial lawyers.
Fathers Can Sometimes Win Custody When Mothers Consistently Disobey Court Orders
Even when mothers have prior orders of custody, they can still lose custody if they consistently disobey court orders, disregard the court ordered visitation schedule, and in so doing, take away a lot of the father’s parenting time, or damage his relationship with the child or children. In these circumstances, fathers have better chances when there is already a joint custody order.
However, if the child or children are older, and have expressed a strong preference for living with the mother, in my experience, New York Courts will seldom change custody, even with violations of court orders.
Courts Prefer To Keep Siblings Together
Sometimes, the father is only the father of one child living with the mother and this child has one or more half siblings who live with the mother . In these situations, if all other things are equal, the court will be more reluctant to give custody to the father because this would separate the siblings. This is especially true if siblings have a strong emotional bond with one another. .
Quality Of The Relationship And Other Factors Courts Take Into Account
Some fathers have very close relationships with their child or children. These close relationships can last for a lifetime. Other fathers exercise their visitation time by putting the child in a room with a television or video game. In my experience, these fathers usually have no clue what they are doing wrong. In order to have a realistic chance of getting custody, a father should be involved in the child’s school and extracurricular activities, or at least try to be involved.
If a child has special needs, the father should make an effort to learn about these and be involved in the child’s care. Fathers with substance abuse issues or past substance abuse issues seldom get custody of children.
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The Outcome Can Depend On Who The Judge Is
New York Courts have a strong policy of being gender neutral and avoiding even the appearance of bias based on gender. However, in my 25 plus years of practicing in Family Court, I have found that some judges are much more likely to award custody to fathers than other judges. We could all speculate as to why this is, but I am not fond of speculating.
It should go without saying, that if you are a father who is planning on fighting for custody, you would be well served by hiring an experienced family law lawyer who has done many custody trials, and is very familiar with how to handle child custody cases with forensic evaluations.