By Jasmine Hernandez, New York Post http://nypost.com/2015/06/18/stop-stacking-the-legal-deck-against-dads/

 Stop stacking the legal deck against dads

As a family-law attorney, it’s been my passion to meet fathers who exhibit the unyielding desire to win custody — or, at the very least, enforce their visitation and decision-making rights in the lives of their children after divorce.

This Sunday, there will be many men spending Father’s Day without the ability to visit their children. It’s a tragedy that we have so many fathers who want to be part of their kids’ lives but a legal culture that makes it hard for them to do so.

That legal culture forces single fathers to identify themselves as part-time parents whose main responsibility is to pay child support.

A mere 17 percent of single parents with custodial rights are men. Society needs to recognize they are as valuable as their co-parent in the day-to-day upbringing of their children.

In his first interaction with divorce court, a father will quickly learn that a mother’s preference — especially if she has possession of the child at the time — remains the judges’ first instinct.

So it’s important for fathers to know that New York state family law defines “custody” as encompassing two distinct concepts.

Physical custody refers to whom the child will live with on a full-time basis. Legal custody refers to the right of a parent to make decisions relating to the child’s education, religion, medical care and extracurricular activities.

The distinction between physical and legal custody is especially important to fathers who do not wish to pursue a custody battle, but instead seek greater involvement in their child’s life.

Once a father has relinquished physical custody, legal custody is the mechanism an attorney should use to maximize the father’s role in each of these areas of the child’s life.

I often seek to carve out provisions in these agreements that allow for the father to have final decision-making authority with regard to a child’s education and/or religious instruction to protect the father’s parenting rights.

New York Family Court judges are generally reluctant to make decisions and instead opt to “monitor” the battle between two parents unless one parent is clearly an unfit parent.

An unfit parent is usually one who struggles with drug or alcohol abuse or some form of substance abuse; has been found to have physically or sexually abused the child; has an extensive criminal record or is deemed to be completely unreliable as to the care of the child.

Therefore, once one parent has possession of the child, it is nearly impossible to lose custody unless the parent is deemed unfit.

This system often works against fathers by making it difficult to change any existing arrangement to allot them more custody.

As The Wall Street Journal reported in April, about 20 states are now considering legislation that would put fathers on a more equal footing.

“If dad is subject to the typical ‘Wednesday dinner and every other weekend’ arrangement, he’s not doing the kind of parenting that benefits kids, making sure the homework is done, getting them up for school,” Linda Nielsen, a psychology professor at Wake Forest University, told the Journal. In that case, she said, the father “is basically reduced to an uncle.”

One of the primary ways that fathers can be successful in a custody battle is to demonstrate a mother’s interference with the father’s visitation rights.

In Timothy Keefe v. Ginger Adams, the court held that it was wrong of the mother to interfere with the father’s visitation by not following the visitation schedule, by acting inappropriately in front of the children and by her unwillingness to foster a strong relationship between the child and the father.

Adding more insult to injury, the mother encouraged her boyfriend to act as the natural father to the child, and changed the child’s school without consulting the father.

The court found the mother’s actions to be so egregious as to warrant a change in custody in favor of the father, despite the child being separated from her maternal half-brother.

On Father’s Day, we strive to remember that dads have responsibilities but have also made sacrifices for their children. We should remember that dads have rights, too.

Jasmine Hernandez is a family-law attorney in White Plains.

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