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Who Is More Likely to Gain Custody of the Children in a Divorce?

legal scales with pink and blue

In New Jersey divorce and child custody cases, parents will have to make a decision regarding how the time with their children is divided. If the parents cannot enter a custody agreement on their own, the Court will have to decide for them.

When the Court makes any custody decision, they look at several factors that indicate what will be in the child’s best interest. We are often asked whether the gender of a parent plays a role in these factors? Our East Brunswick custody attorneys explain whether the mother or father is more likely to gain custody of their children.

Does Gender of a Parent Matter in Custody Decisions?

A common misconception parties have when coming to see us is that the mother is more likely to gain custody. This isn’t true. According to New Jersey law, in custody cases, both parents’ preferences are equally considered.

This means gender is not a factor in determining custody. Instead, the court will look at other criteria on a case by case basis to decide whether a parent is fit for custody. These factors help the court understand whether custody with that parent will be in the best interest of the child.

According to New Jersey law, the following factors are looked at when making a custody decision:

  • The parents' ability to agree, communicate and cooperate in matters relating to the child;
  • The parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
  • The interaction and relationship of the child with its parents and siblings;
  • The history of domestic violence, if any;
  • The safety of the child and the safety of either parent from physical abuse by the other parent;
  • The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
  • The needs of the child;
  • The stability of the home environment offered;
  • The quality and continuity of the child's education;
  • The fitness of the parents;
  • The geographical proximity of the parents' homes;
  • The extent and quality of the time spent with the child prior to or subsequent to the separation;
  • The parents' employment responsibilities; and the age and number of the children.

Establishing Paternity

Although gender does not play a role in determining custody, it can present an obstacle in custody cases where the parents are not married. Specifically, unmarried fathers have to establish paternity before they can fight for custody.

A mother does not have to do this as it is clear the child is biologically theirs, possibly giving them an advantage when it comes to custody decisions. If the parents are married, the law assumes the male spouse is the biological father of the child. When parents are not married, the father will have to prove their paternity to ensure they are eligible to have custody of the child.

Unmarried fathers can establish paternity by:

  • Signing a Certificate of Parentage (COP) - for an unmarried father’s name to be on a child’s birth certificate, this form must be signed first.
  • Getting a Genetic Test - in this case, a judge may order the test be done, or the unmarried father can do so voluntarily.

Once paternity is established, the father will legally have the rights to custody and visitation of their child. By doing this, the court can ensure the child’s best interest is protected.

For Effective Legal Assistance, Contact Rozin | Golinder Law

Custody matters are never easy for either parent. No mother or father wants to give up precious time with their little one. It’s important for a child to have a loving bond and relationship with both of their parents. However, this may not always be what’s best for the child.

Speaking to a New Jersey divorce and custody lawyer can protect you and your family as you navigate this difficult transition. Rozin | Golinder Law is here to provide you with effective legal representation to resolve custody and visitation issues.

Call Rozin | Golinder Law at (732) 810-0034 to discuss your child custody case with our East Brunswick custody attorneys.

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