Gender Neutral Provisions On New Custody Law
- posted: Apr 25, 2011
On January 22, 2011 Title 23 §5328 (b) went into effect along with other revisions of the Domestic Relations Law. It provides that the court shall be gender neutral in making a determination under the Act. In other words, no party shall receive a preference based solely on gender in any custody award granted.
This essentially is the codification of what had existed prior thereto in various case law holdings providing that to do otherwise would be unconstitutional gender bias and discrimination.
As such, while law firms like Cordell & Cordell specifically advertise a need to focus on men in custody cases, the law has and continues to provide these constitutional protections for men and women equally.
Rather, it is the focus on the numerous factors as updated and revised under the Acts Amendments that need to be the focus regardless of gender which when applied could be to the Mother or Fathers benefit or detriment as the case may be.
The sixteen (16) factors, are enumerated as follows;
- Which party is more likely to encourage and permit frequent and continuing contact between the child and another party§ 5328 (a)(1).
- The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate safeguards and supervision of the child.
- The parental duties performed by each party on behalf of the child §5328 (a)(4). Parental Duties Defined: Includes meeting the physical, emotional and social needs of the child §5322.
- The need for stability and continuity in the child's education, family life and community life §5328 (a)(4).
- The availability of extended family §5328 (a)(5).
- The child's sibling relationships §5328 (a)(6).
- The well-reasoned preference of the child, based on the child's maturity and judgment §5328 (a)(7).
- The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm §5328 (a) (8).
- Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs §5328(a)(9).
- Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child §5328 (a)(10).
- The proximity of the residence of the parties § 5328(a)(11).
- Each party's availability to care for the child or ability to make appropriate child-care arrangements §5328 (a)(12).
- The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party §5328(a)(13).
- The history of drug or alcohol abuse of a party or member of a party's household §5328 (a)(14).
- The mental and physical condition of a party or member of a party's household §5328 a)(15).
- Any other relevant factor §5328(a)(16).
After a thorough reading of these factors one can clearly see that neither a man or woman would meet with an unfair advantage or with any per se deficit based upon gender. Claiming otherwise to a Judge sworn to uphold the law, or seeking for that matter to solely represent one sex as opposed to the other to "even the playing field" so to speak would do more harm than good in the case taking the Courts eyes off the factors that matter and which will win the case regardless of what sex the parent happens to be. At Adamczyk Law Offices, LLP we represent both men and women with equal vigor and passion applying the law as written.
Clients should expect an honest evaluation of their case by their lawyer. Obviously an honest evaluation would have to indicate to the male or female client the prospects for success in a claim for 50/50 or primary custody given the above factors.
A lawyer or law firm which has to promote that they can obtain results based upon gender to procure an individual's case would never serve the clients interest, may in fact be harmful to the case and certainly add unreasonable expectations for the client.
As such, it cannot be stressed more that for the best results your custody case needs evaluated under the factors set forth under the law and not based upon gender. That is what we do at Adamczyk Law Offices, LLP.