Myth 1: The gender of a parent is the determining factor in establishing custody of a child

    Many clients seem to believe that a judge will award them custody of their child because “a judge will never separate a daughter from her mother or separate a son from their father”.  It is a common misconception that the New Jersey Family Courts use gender as the exclusive factor when deciding which parent is awarded custody of a child.
    The gender of a parent is just one piece in the complicated puzzle that our Courts refer to when administering the “best interest” test.  Sex-based presumptions have eroded in favor of an inquiry focused solely on the overall “best interests” of the child.  The “best interest” analysis takes into account the child’s general safety, happiness, mental and moral welfare as well as specific statutory factors including, but not limited to: (1) the fitness of the parents; (2) the preference of the child ; (3) the custodial parent’s employment responsibilities/schedule; (4) the needs of the child; (5) the child’s educational opportunities (will the child be able to continue at their present school) and (6) the child’s extracurricular activities.

    In the not so distant past,  New Jersey Courts have used gender as a determining factor for determining custody during the first seven years of a child’s life.  Our Courts followed the historically rooted “Tender Years Doctrine”, which forwards the presumption that a mother’s custodial care is ordinarily in the best interest of the child during the developmental period.  This doctrine has now been rejected by not only our courts, but the psychological community as well.

    In the recent Appellate Division case, Schottel v Kutyba, the mother of an adolescent female argued that the father, as a male, was incapable of raising their teenaged daughter.  The Appellate Division found no merit in this argument, held that it was constitutionally inappropriate and affirmed the father’s sole custody of the daughter.

    Courts are now required to conduct very detailed hearing and make specific conclusions of law and fact as to what is the “best interest” of the child when making a custody determination.