The Myth that Fathers Never Get Custody

I see a lot of fathers who come to my office believing that they do not stand a chance of getting custody of their children solely because of their own gender. These men have been conditioned to believe that only women get custody in Family Court, regardless of the woman’s behavior or parenting ability. This has not been the law for many years, since the Tender Years Doctrine was abolished. Based on my practice, I do not believe this to be inherently the case. In recent months, I have been successful in obtaining custody of children for a father, over the objection of the mother, on several occasions. While I do not keep any statistics on the matter, I can say that the fathers who won custody were very active fathers before the custody case took place. I believe that parental involvement, coupled with the reasons for the separation, as well as proof of bad behavior by the other parent, and the child’s wishes, are the critical factors considered for custody determinations. There are enumerated considerations that the Court must consider, but I find the aforementioned factors typically to be given the most weight.

Regardless of whether I am dealing with representing a mother or a father, I find that a custody case goes my client’s way if my client is an active involved parent, free from any adulterous behavior, free from drug use or alcohol abuse, and of course, free from criminal activity. A parent with a good relationship with the child is much preferred by the Court.   Proof of this comes in many forms: affidavits from neighbors, friends, educators, medical providers, counselors, coaches and clergy come to mind. In this regard, a custody case is “decided” long before it is ever filed. A child is a person, with a soul, a life and their own achievements and desires. The parent who participates in that and cultivates that little person is likely to be awarded custody or significant joint custody time with the child. New born infants are an exception to these statements. Newborns, especially those that are nursing, are much more likely to be in the sole custody of the mother, for obvious, biological reasons. However, a separated father can (and should) become very active in the life of this child as it grows up.

If the Court cannot easily determine which parent has been the primary caretaker, the Court is more likely to award joint custody. There has been a recent trend of awarding week to week arrangements where they are practical. These arrangements, if workable, allow for extensive and presumably equal parental involvement.

Children are our future and it’s preferable for them to have two involved, active parents, who are willing to put the child’s needs before their own needs. If I am able to establish such behavior, I am pretty confident that my client will not be relegated to a “visiting” parent with only alternating weekend contact, regardless of the gender of my client.

Self-education is important. For a different point of view, please read this piece by my colleague, Greg Forman:

If you’d like to talk to me about a custody or visitation case, email me at, I can usually respond to email inquiries within twelve hours.



One comment

  • People’s Choice Law Group

    Hi MJ,

    Great post. It’s definitely true many men believe they have a poor chance at obtaining custody of children. That said, it’s good to see many family law courts have moved away from designating sole custody and instead prefer joint custody or so-called time sharing.

Leave a Comment