Article by Daniel A. Levy, Esq.

As part of my Divorce practice, clients ask me all sorts of questions right at the beginning of the case. And one of the most popular questions fathers ask me is, “Why does the mother always get custody?”

It’s a very good question. In my experience, it is far more likely that a mother has residential custody of the child, and the father would have parenting time per a schedule, rather than the other way around. But does it have to be that way? Is there a law that requires children to live with Mom?

The answer is, no, there is no such law. There is literally no legal reason in New Jersey for residential custody to automatically be give to the mother. A long time ago, that was the policy in many places, and the father would only have residential custody if the mother was unfit. But that is definitely not the law in New Jersey today.

Presently, it is the policy of the State of New Jersey that both parents are entitled to a meaningful relationship with their children and both are entitled to co-parent and share in major decisions. As a practical matter, the child needs to live in one parent’s home for the majority of the time (although, rarely, there are true 50/50 parenting plans, but such is simply not realistic for many people due to geography, work and school schedules, etc.). And the court needs to base its decision in this regard on what is in the best interests of the child, using a variety of factors. But the court is not allowed to simply rule that children, by default, live with their mothers primarily.

So why is it that the mother has residential custody far more frequently than the father? In my view, there are a few reasons for this. First, most fathers that I meet do have a more traditional view on parenting and they agree that the child should live with Mom. Second, most mothers that I meet are far more likely to fight harder for residential custody. Many view it as an insult to them, personally, if they do not have primary residential custody. Mothers will frequently refuse to negotiate on this issue while many fathers, in my experience, will be more open to negotiation – they may (correctly) realize that having 2 or 3 overnights per week with the children is not going to be much different than having 4 or 5. Finally, I feel that in certain cases the lawyers, courts, and mediators who are involved in the case do have a little trouble shaking the traditional views on parenting.

In any case, if you are involved with a custody dispute, it is very important that you retain an attorney to assist you. Even if you think that the situation is simple, in my experience nothing is so simple when children are involved.