Mother's Rights

Currently, there is a perception that mothers have superior rights to fathers when it comes to custody matters. In the recent past, this was true – women were given preference in contested custody cases. The courts believed that women were the primary caregivers of the children, and often this was true. But today, women are working outside the home more frequently, and parents tend to equally share in the child-raising duties. According to the U.S. Department of Labor, mothers are the primary or sole earners for 50 percent of households with children today – compared to 11 percent in 1960. The majority of mothers with children are members of the workforce, with most of them being employed full time. Therefore, in New Jersey, the laws concerning custody are now gender-neutral, with mother’s rights being equal to those of fathers.

There are two basic categories when it comes to mother’s rights to custody: physical custody and legal custody. Legal custody deals with the decision-making power of each parent – who gets to decide the child's medical care, educational decisions, or therapy? Physical custody deals with who the child lives with the majority of the time.

Mother’s rights are also on equal footing to father’s rights when it comes to parenting time. New Jersey laws foster ‘frequent and continuing' contact with both parents with their children. The courts will develop a parenting time scheduled based primarily on the best interest of the child. There are other factors that come into play, namely the ability of each parent to co-parent and cooperate, how close each parent lives with each other, the demands or schedules of each parent's job, the ages of the children, the preference of the children, depending on their age, any special needs of the child, and of course, whether there was any abuse or neglect on the part of the parent.

Essentially, the party who will be awarded custody will be the person who has been the primary caregiver of the child. While gender roles are becoming increasingly equal, the fact remains that in most households, mothers are carrying the bigger load of the domestic labor and child-rearing. Women spent out six more hours each week doing household work, and about three more hours each week taking care of the children, according to a study from the Pew Research Group. Men with children get about three more hours of leisure time than their female partners each week. As a result, women are more frequently found to be the primary caregiver.

Usually, this contemplates the person who does the day-to-day tasks associated with raising children. Who made and attended doctor's appointments? Who transported the children between school, play dates or extracurricular activities? Who woke up with the kids if they were sick? Packed school lunches? Did the laundry? Chances are if you were the woman in the relationship, you did more of these tasks more often, in addition to a full-time job.

If so, then it would be beneficial to your case to begin a daily diary listing out the tasks you do with the child. Sitting down and coming up with a ‘day in the life’ for your lawyer will also help make the argument that you are the primary caregiver and thus deserve to be with your child on a more frequent basis than their father. Other things that are persuasive is showing the court that your job is flexible and allows you to take time off for your children if they are ill or take them to extracurricular activities.

One principle where mothers do have a slight advantage over fathers when it comes to custody is the ‘tender years' doctrine. If the child is especially young or is still breastfeeding, then it makes more sense to award more time and custody to the mother. New Jersey courts are allowed to use this doctrine in determining the best interest of the child. However, this doctrine has admittedly been weakened in recent cases. In 2017, the Appellate Division determined that an 11-month-old child was subject to 50/50 custody between the parents, in Fisher v. Szcygloski. The parties were stable, and they had lived together for the first four months after the child's birth. Remarkably, the mother still breastfed the child, but the judge determined that this should not outweigh the father's rights to visitation with his son.

Mothers can also have a slight advantage over fathers if the couple is unmarried at the time of the birth of the child. That is because there is no legal determination of paternity of the child unless the father signs an acknowledgment of paternity. Unmarried fathers have no parental rights to a child unless and until their paternity has been established. This is easily done if the parties agree; however, If there is any question at all as to paternity, then DNA testing may be required. The father might have to file a lawsuit in family court to determine his paternity and subsequent right to see his child. Therefore, fathers must take more steps than the mother in order to gain rights to the child.

If you have questions about mother’s rights and custody determinations in NJ, reach out to the Law Offices of Peter Van Aulen. With over 20 years' experience as a family law practitioner, he and his team stand ready to help you with any case. Call 201-845-7400 for a consultation today.