Divorce law is supposed to be applied equally towards any person, irrespective of gender and or identity preference. Why, then, would divorce affect women differently than men? Simply put, the reason is the reality of most circumstances encountered by our community. Our practice has demonstrated that, generally, women are more emotionally invested in the marriage than men, and women tend to be the primary caretakers of the children. Of course, these circumstances alone cannot lead to a generalized conclusion that men are apathetic about the marital relationship or their children. However, what these circumstances do reflect is that women more often than men sacrifice their careers; work part-time; or stay at home full-time to raise the children.
Another reality that our society confronts is that of domestic violence. Divorce can also mean freedom for women that are victims of domestic violence. It is not uncommon to encounter brave women who have endured years of verbal, mental or physical abuse from their spouse. For many of my female clients, for example, they have endured and tolerated years of living in an abusive marriage to raise the children and keep the family intact.
How, then, does these realties affect how issues of child custody are determined in the court system?
Which Parent is Awarded Custody of the Children in a Divorce?
New York law determines the issue of custody based on the “best interest of the children” principal. As such, while the court considers the circumstances endured by the parents, the court is the parens patriae of the children – or the children’s legal protectors. So, what does that mean for women who sacrificed their careers to raise the children in order for their husbands to become the bread winners? In deciding who is awarded custody, the court will analyze several factors to determine which parent is more involved in raising the children. For example, some of these factors include which parent takes the children to their doctors’ appointments, attend school meetings, cook for the children, helps the children with their homework, or takes the children on playdates. Thus, if you are a stay-at-home mother or a mother who works part-time because you decided to make your children your priority, you may have the upper hand in having the court grant you custody of the children.
If you want custody of your children, it is your burden to convince the judge that it is in the best interest of the children that they reside with you. In other words, you must be able to show the court that you are a “super parent” that is capable of meeting your children’s everyday needs.
Does it Matter That My Husband Earns More Money Than I Do For Purposes Of Custody?
Not every family is a two-income family and courts understand that spouses are not always on equal financial footing. Custody is not determined by which parent makes more money. Instead, the law provides for financial support to the less-monied spouse in order to level the playing field in a custody proceeding or a divorce action.
Therefore, stay-at-home mothers should not be worried that they will lose custody because their husbands are in a better financial situation. If the court determines that the mother was the primary caretaker of the children during the marriage, she likely will be awarded custody. In addition, the mother will receive child support as the custodial parent and may be eligible for spousal support as well.
Fighting for custody of your children is not an easy task and you will need an experienced attorney on your side. For more advice on how to obtain custody in New York, contact The Louis Law Firm at (347) 689-7562 to schedule a free consultation. As a New York child custody lawyer, I will develop a case strategy with you so you can fight for your rights as a parent.