Sunday, April 12, 2009

On the Equality of Parents’ Rights

Although in reality, it has nothing to do with the way that New Jersey courts deal with family issues, the fact is that the body of family laws in New Jersey establishes that the both parents have equal rights to the custody of their children. In Ali v. Ali (279 N.J. Super 154, 1994), a seminal case on which the divorced parents battled for the custody of their only child, the courts clearly stated that both parents have equal rights to the custody of their children:

There is no mechanical presumption that either the father or the mother is entitled to custody at a fixed age. Thus, New Jersey’s standard of the “best interest of the child” recognizes “that the paramount consideration is the safety, happiness, physical, mental and moral welfare of the child. Neither parent has a superior right to custody… 279 N.J. Super 168 (1994)

This case of 1994 reaffirms what Beck v. Beck had already clarified in 1981:

…parents involved in custody controversies have by statute been granted both equal rights and equal responsibilities regarding the care, nurture, education, and welfare of their children. See N.J.S.A. 9:2-4. (…) …this clearly related statute indicate a legislative preference for custody decrees that allow both parents full and genuine involvement in the lives of their children following a divorce. This approach is consonant with the common law policy that “in promoting the child’s welfare, the Court should strain every effort to attain for the child the affection of both parents rather than one. 86 N.J. 485 (1981)

The fact that sole custody decisions are usually awarded to mothers indicates that in many cases courts tend to forget that in the development of a child, both parents have different but equally important tasks. One of the most important statements of Beck v. Beck is:

…that although defendant’s care of the girls was more than adequate, she is limited by an inability to be both a father and a mother. 86 N.J. 493 (1981)

In other words, fathers are only capable of being fathers, but also mothers are only capable of being mothers, and their children need both: “there is a real purpose in fatherhood as well as motherhood.” (86 N.J. 493)

When New Jersey family courts award sole physical custody to mothers in the absolute majority of cases as they do, they only repeat a gender biased prejudice that should be eradicated from the courts, especially when the laws have done it already.

No comments:

Post a Comment