Question

Is there any gender preference in New York custody cases?

Faith G. Miller - Family Law - Super Lawyers

Answered by: Faith G. Miller

Miller Zeiderman & Wiederkehr, LLP
White Plains, NY
Phone: 914-455-1403
Fax: 914-468-4244

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Answer

Unlike in the past, there is no current preference given to the mother or father in child custody cases that are handled in New York. Gender and family roles have diversified in the past few decades and the courts have strived to keep up with the changing American family.

No Presumption Of Parent

The stereotypical idea of an American family was that a man, the husband, worked while the woman, the wife, was home with the couple’s children. When this type of couple split, the woman would get primary custody of the children. Is that the same today? Definitely not.

Courts do take a multifaceted look at the entire family structure and who has played what roles in the children’s lives. In a custody case, the judge is going to take a hard look at who has been the primary caregiver. That is, who has been the one doing most of the “child maintenance” work: keeping schedules, making appointments, running errands, taking time off work when a child is sick if both parents work, etc. The court does not presume that this is the mother. They truly look at each situation on a case-by-case basis and make a determination as to the types of custody each parent will have.

Courts Do Not Award Custody Blindly

In some cases, an individual will stay in a marriage because he or she is concerned that the other spouse will somehow get custody of the children, even though they have a substance abuse or domestic violence issue. You should know that you do not have to feel stuck in this type of situation. Courts do not award custody blindly. As stated above, the family court judges are savvy and take a multifaceted view of child custody cases to ensure that any decisions made are first and foremost in the best interests of the children. They do not give unfettered access to a child or children if a parent is struggling with an issue that may put the child or children in danger.

Other Issues May Be A Factor

When custody is part of a divorce, it is understandable that parents are concerned about other issues as well. There are many matters that need to be handled as part of a divorce, including property division and spousal maintenance (spousal support/alimony). Since equitable distribution laws that govern property division do not protect the person in the marriage that may have sacrificed a career to stay home with children, and spousal maintenance guidelines are very strict, it is even more important to have a skilled, experienced family law and divorce attorney on your side. All of these issues are often connected in a divorce and you do not want someone who can just handle one. You want someone who can handle your custody case and explain how any decisions in a child custody matter may affect other aspects of your divorce, and vice versa.  

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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