Does Gender Matter in Custody Decisions?

Child custody and divorce cases mean that at the end of the case, the parties or sometimes the judge will have to make a decision about how has custody of the child. In New Jersey, custody is divided in legal custody and physical custody. Physical custody is, as the name suggests, the person with whom the child lives more than half the time, and the other parent will have visitation (or parenting time as it is generally referred to). Legal custody concerns the decision making authority over the child, and is almost always shared by the parents in “joint legal custody.” As with most other decisions regarding a child, the court must determine which parent should have custody based on the child’s best interest. This is codified in the New Jersey Family Code, where you can find a laundry list of factors that a judge will consider when deciding which parent should have custody of the child, and also what to consider in crafting a visitation schedule.

Notably absent from the list of factors under the best interest statute is gender. New Jersey law does not provide that a parent’s gender is an aspect to be taken into account when making a custody determination. In fact, New Jersey law suggests the opposite, as case law has interpreted the New Jersey statutes to indicate that the legislature has crafted the best interest factors in order to provide both parents with real involvement in their children’s lives following a divorce or separation. New Jersey 9:2-4 specifically provides that “in any proceeding involving the custody of a minor child, the rights of both parents shall be equal.” In short, gender is simply not written into New Jersey law as an element that will give either parent an edge over the other in custody determinations.

Instead, courts will look to other issues such as stability, parental fitness, needs of the child, and employment demands of each parent, and other similar issues. If one parent has traditionally been responsible for the day-to-day care of the parties’ children, then that parent will most likely have a better chance of being the primary custodian of the children, as this provides the children with stability, as well as the best chance of placing the child with a parent who is best acquainted with his or her needs. Moreover, one of the factors to consider is “the extent and quality of the time spent with the child” before or after the parties’ separated. The New Jersey legislature is thereby recognizing that a parent who has traditionally been the primary parent may be better situated to provide a home for the children which meets his or her best interest.

Child custody is a subjective area of law. in helping clients understand the issues and achieve their goals for their children. Call us today at (732) 529-6937 to talk about your case.