At one time, courts presumed that mothers were better suited to have custody during the early years of childhood. This presumption was known as the “tender years” doctrine. However, this presumption relied on the belief that mothers were more likely to stay at home with their children. As more women now enter the workforce and men assume more active parental roles, courts have rejected the tender years doctrine. All states now have statutes that require courts to apply a “best interests” analysis when deciding custody or placement for a child. “Best interests” statutes may require courts to weigh specific factors, such as the emotional ties between the parent and the child, and the parent’s capacity to provide for the physical and emotional needs of the child. At least one state, Delaware, explicitly forbids courts to assume that one parent will be a better custodian than the other parent because of his or her sex, but in practice, all courts should apply the “best interests” test in a gender-neutral way.
Custody arrangements may take different forms. A parent may file for sole custody or joint custody. A parent who is granted sole custody has the power to make decisions about all significant issues involving the child, including where the child is educated and what kind of medical care the child receives. The child also lives with the custodial parent, although the non-custodial parent often has scheduled parenting time with the child. Such custody arrangements are uncommon. Courts usually grant a parent sole custody only if the non-custodial parent has been deemed unfit for a reason such as abuse or addiction.
Joint custody arrangements are more common. In joint custody situations, the child lives only or primarily with one parent, but both parents share child-rearing responsibilities. The non-custodial parent enjoys extensive parenting time and participates in significant decisions about the child’s life. While courts cannot rely on outdated assumptions about which parent will be the better caregiver, fathers who want to obtain sole custody, or who want to establish generous parenting time should be prepared to show courts that they are financially responsible and that they take an active, daily interest in their children’s lives.
As ideas about custody change, the terminology describing custody is changing too. Custody arrangements used to refer to “visitation rights” for the non-custodial parent. This outdated terminology implied that the non-custodial parent was only visiting and did not have an ongoing responsibility for or relationship with the child. Today, courts recognize that all parents spend “parenting time” with their children. The new term acknowledges that non-custodial parents also use their parenting skills to help care for their children and act in the children’s best interests. Changes in law and language reflect the importance of fathers and the need to foster healthy relationships with fathers and children.
Elliot Schlissel is an attorney licensed to practice in the State of New York. His law firm, with offices in Nassau County, Suffolk County and Queens County, practices in family law & divorce, criminal law, personal injury matters, bankruptcy, wills & trusts, and foreclosure defense.