Fathers’ Rights in New York

Understanding fathers’ rights is the foundation of my practice because I have lived the process having been a dad who went through a custody battle before I became an attorney. I have also seen the topic evolve over the past 20 years or so in both the legal arena and in people’s minds. Many of the initial inquiries I receive from men who are contemplating divorce revolve around this singular issue. What seems to be the biggest fear of fathers? That they will be cut out of their children’s lives, which often leads men to stay in untenable situations instead of seeking a resolution that ultimately benefits all parties involved.

There was absolutely a time when fathers were treated as second class citizens in the courtroom and the family post divorce. This phenomenon hasn’t quite disappeared entirely, but it has improved greatly. There is an assumption in society, which was also reflected in courts around this nation, that women are simply better caregivers and should be granted greater parenting rights in a divorce settlement.  This was called the “tender years doctrine.” This arose out of the now mostly gone “traditional family.” This stereotype permeated the justice system because the system is comprised of people and in a bygone era this sentiment carried some justified weight. Men were breadwinners; women were homemakers. This was the “traditional family” structure that endured in our minds and in media portrayals long after it ceased being true in real life.  Interestingly, “traditional family” has existed only since the end of World War II, and began to end in the 1970’s.  Before this, almost always obtained custody because he could better afford and discipline the child to help keep juvenile delinquency down and keep them off the streets.  It is ironic how short a period of time the “traditional family” was a main stay to be called “traditional .”

Today, there is greater pay equality among men and women and fathers are more involved than ever in their children’s lives. Equality in the work place is essential to equality in the family.  The more fathers miss work to care for sick children, the less this will be held against women as an assumption that only a mother will miss work to care for a sick child. Now most household parenting is equally shared.  Just as many dads drop off and pick up children from school or the bus stop or the babysitter as do moms.  Open school nights have just as many dads attending as moms do these days.  And the courts are finally catching up to this reality.

Custody in New York State is supposed to be based on the “best interest” of the child.  Factors the court focuses on include, but are not limited to: which parent is more in tune to the child’s emotional needs; which parent is more in tune to the child’s psychological needs; which parent actually has been the one waking the child up in the morning and getting the child ready for the day; which parent supervises homework, play and social activities; which parent prepares the meals for the child; which parent is home more for the child; which parent tends to the child’s medical and dental needs. A parent’s background with crime, drugs and or alcohol will also be a factor.  Any present abuse of alcohol or prescription drugs or use of illegal substances will nearly preclude that parent from custody and probably result in supervised visitation.

In my opinion, most children will grow up just as well with either parent as a primary parent. Also considered is which parent is most apt to encourage a relationship between the child and the other parent and as well be least apt to bad mouth the other parent.  To me, this last factor should be the first and most important factor!

In an acrimonious split, the court will almost always appoint an attorney to represent the child who is only supposed to advocate the position of the child and not recommendations based upon personal interviews and observations.  But too often the attorney for the child does make recommendations based upon personal interviews and observations and sometimes improperly asked for this by the Judge.  Sadly, sometimes the child’s attorney winds up acting as a second attorney for the mother.  The child’s attorney is the child’s attorney not the mother’s and not the father’s.  This lawyer should spend minimal time communicating with either parent except as to arranging to meet with the child and obtain background information.

Sometimes the courts appoint a forensic evaluator to psychologically evaluate the parents.  This has been an important tool in getting the courts to look past false allegations against a dad made by a mom.  Since this has been realized, many gender biased women’s rights supporters have looked to avoid having forensic evaluators and to prevent them from being permitted to make recommendations.

Too often how you act in court is the undoing of the average man.  You must be in full control of your emotions.  No one will ever understand that in your shoes they would feel the same. If you are overly expressive in the courtroom — such as shaking your head when you hear things you do not like or want the court to know are lies, talking out of turn, yelling, talk in way of being very upset, folding your arms and peering over— it makes you look out of control and gives the impression that everything your wife says about you must be true.  No one will notice your wife acting this way at all if you do. In this sense, there is still a gender bias. When you go to court you should always dress in a suit and tie and show the court that you respect yourself and the court.  If you do this and do not like how you are treated, it would be even worse otherwise.  Best to act as if you are at a fortune 500 corporate board of directors meeting when dealing with all aspects of the court process.

You must make friends with everyone, even your spouse’s attorney.  Never let the attorney know if he or she gets to you.  That is just giving that lawyer a birthday gift.  The lawyer will use it to get to you eventually in front of the judge and you’ll be doomed.  Always greet him or her with a hand shake and polite greeting.  Then your wife’s lawyer will begin to wonder if you really are as bad as she says.

Finances are certainly important, but not as much as one might think when it comes to custody, except in the situation of seeking a change of custody or more importantly in a relocation case.  But it is still not a main factor.

It’s important to know that there are different types of custody, sole custody and joint legal custody and how if at all they relate to parenting time and child support.  (See my blog on http://www.macenylaw.com/child-custody/.)

Even after your divorce is final and custody has been determined, circumstances change. Managing children from two households is hard, which is why divorce seldom ends once signatures are on paper. Life is fluid and so is divorced life. (See my blog on post-divorce enforcement.)  But understand this, most divorced parents do not return to court.  Live according to the settlement agreement or court order and do not vary unless mutually agreed to.

The most valuable feedback I give my clients and prospective clients interested in knowing the rights of a father in a divorce is a healthy dose of reality:  If you drop the children off and pick them up at the school, the doctor, the dentist their friend’s house and stay in the car no one sees you doing it. So even if you do it four of five school days but mom does it only once a week but gets out of the car and greets everyone, she is the only one witnesses can testify to seeing caring for the children.

And if all you have is visitation, that is your time to be a parent, not just a visitor, so be a parent!