Father's Rights

So many clients assume that mothers have the edge when it comes to custody disputes in family cases. The reality is that courts are not allowed to consider the gender of either parent when making their custody determinations in New Jersey. However, there are multiple other factors a judge will look at, and there are dozens of other questions clients have when it comes to understanding father's rights in NJ.

It is becoming more common for unmarried couples to share a child. If the parties are unmarried, then, unfortunately, the father does not have any automatic rights to the child without doing some initial steps to register his paternity. He can get a judgment of paternity from the court, which would declare the man to be the child's father. Or, both parents can sign a 'Certificate of Parentage' which is a sworn statement by both parties that believe him to be the biological father of the child. Once this certificate is filed, it can be difficult to change the document; therefore, it might be a good idea for both parents to do some DNA or genetic testing to ensure there is no doubt as to the paternity of the child.

However, there are some legal presumptions made that are crucial to know when understanding father's rights in NJ. For example, if the parents are unmarried, then he is still legally presumed to be the father if he holds out to the world that he is the father of the child and he provides financial support to that child. Regardless, the courts in New Jersey will not make any decisions regarding the custody of an unborn child. Only when the child is born will either parent be able to ask the court for a custody determination.

Once the father has been able to establish his paternity as to the child, then he will be able to petition the court for custody, visitation and even child support on behalf of the child.

In all cases, the judge's primary consideration is the best interest of the child. Therefore, they will look at who has been the better and primary caretaker of the child. Because fathers have the same rights as mothers, they essentially start at the same place as each other before a judge. Then, the judges will look at who does the bulk of daily parenting duties (bath time, dinners, extracurriculars, homework, and the like). They also examine any issues they think might be pertinent to the best interest of the child, such as each parent's work schedules, travel required by the parent, substance abuse, neglect or family violence.

Importantly, although mothers and fathers have equal rights to the children, courts in New Jersey will rely on the 'tender years doctrine' and will usually come down in favor of the mother, all other things being equal. So, if the child is very young, or even still breastfeeding, this will be a factor that weighs in favor of the mother obtaining more parenting time.

Another cog in the wheel of understanding father's rights in NJ is the use of a parenting plan in family courts. This is a plan or agreement which lays out the type of custody each parent will have, as well as the times each parent gets to spend with the child. A good parenting plan will be thorough and include holidays and school vacations. It should also consider the working schedules of each parent, how far away each parent lives from the other, any school or extracurricular activities of the child, medical needs of the child, and any other children from a previous or new relationship that may be a factor.

If the father and his former spouse or partner do not communicate well, the father may be worried about whether or not the mother will follow the court's order, or if their relationship with their child will be interfered with. Some relationships end badly, and a parent can be tempted to use the child as a pawn and pull them away from the other parent. This is called parental alienation, and can be a problem that some fathers face. A lawyer will be able to help you assess the best way forward. Sometimes, court-ordered therapy between the father and the child can help repair a damaged relationship.

If the mother fails to comply with the parenting plan, then fathers can enforce it - it is a court order. Usually, an enforcement occurs if the mother starts failing to allow visitation with the child, blocks telephone calls and emails, or actively interferes with the father's parenting time, then the father should file a lawsuit forcing compliance with the order. Sometimes, if the behavior is serious enough, the court will change its order to include compensatory parenting time or even a change in primary custody.

Often, as children age and circumstances change, it will be necessary to change the original custody order and parenting plans - and the father has the right to file for a modification to do so. Often, modifications occur if there is an imminent relocation, a parent's job or working hours have changed, or the child's needs have changed. Sometimes, this can simply be by virtue of the child growing older and gaining new interests. The parent filing for a modification must show that there is a substantial change in the circumstances that existed at the time of the original order and that the proposed modification is in the best interests of the child.

If you need help further understanding father's rights in NJ, get in touch with the law offices of Peter Van Aulen for a consultation at 201-845-7400.