Sexism in the Courts? Small Children, probably with infants

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Candice

President at Schwager Firm
Welcome to Schwager Law Firm from our Founder and Principal, Candice Leonard Schwager. Candice is an experienced litigation attorney with a wide array of experience, including Family Law, Probate, Guardianship, Civil Rights, Contractual disputes, personal injury, products liability, & school law, representing children with disabilities. The Founder & President of two Non-profits for special needs, the elderly and disabled, Candice's practice is a diverse combination of people from al walks of life. Candice's public interest work has been recognized by the Texas State Bar Pro Bono College 7 years in a row, with thousands of hours donated to low income Texans who would not otherwise have access to justice. A 1997 Cum Laude Honors Graduate of South Texas College of Law, Law Review Editor, Brief Writer for STCL's award winning National Moot Court Team, and Research/Writing Assistant to W. David East, Associate Dean, Candice believes in excellence and has been blessed with the opportunity be mentored by the best lawyers in the State of Texas for 2 decades.

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Candice
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In the United States, state laws involving custody do not automatically favor the mother over the father, but courts apply the best interests doctrine to determine what is in the best interests of the child. While a father’s legal rights with a newborn are usually the same as with an older child, cases involving newborn babies have unique circumstances. The well-being of the baby should be the paramount consideration, and courts consider the best interests of the child, over the desires or requests of either parent.
Legal Definition of “Father”

In the United States, if a mother and father are married and the father is named on the baby’s birth certificate, he is granted parental rights of custody and visitation, provided he is a fit parent. The situation is less clear when there is a question of paternity or if the parents are unmarried. If paternity is questioned and the mother will not let the father visit the newborn child, the man should file for a paternity test in family court in the jurisdiction where the mother and child live. The court will grant parental rights if a DNA test proves paternity.
Legal Custody

Custody is divided into physical custody and legal custody. Physical custody is where the child lives. Legal custody is the right of biological parents to be involved in important legal decisions relating to the child’s upbringing, what school he goes to, what religious preference or church (if any) the child will attend, and what health care he receives. Custody, including legal and physical custody, may be sole, joint or shared. Courts will usually award joint legal custody, unless doing so is not in the child’s best interests. This could include an unfit, incarcerated, abusive or neglectful parent. Joint custody means both parents have equal rights to be involved in the important decisions affecting the child, from birth until the child is old enough to make his own decisions, usually age 18 in most states.
Physical custody refers to the child’s primary residence. In the case of unmarried parents, the court tends to award physical custody to the mother. Physical custody may be awarded to the father, if the mother is deemed to be unfit. In the case of a newborn, physical custody is often awarded to the mother, if she is breastfeeding the child throughout the night, says attorney Lina Guillan for DivorceNet.com. The father is likely to have few or no overnight stays with the baby until she no longer requires night feeding. This comes down to what is in the best interests of the baby, rather than giving preference to either parent over the other.
Parenting Time

A father who is not granted physical custody (sole or joint) of his newborn baby is usually granted visitation rights, often called parenting time, according to what the court determines is in the best interests of the infant. If the parents are unable to reach an agreement, the court will set up a schedule of visitation in a parenting plan, taking into account the baby’s feeding schedule and sleep patterns. “Creating a Parenting Plan: Children Under Three” by the Los Angeles Superior Court suggests a two-hour visit on three non-consecutive days per week for babies from birth up to 6 months.

If the baby is drinking formula from a bottle, overnight stays with the father may be a possibility. If the father suspects the mother is using breastfeeding as a reason to deny him overnight stays, the court would have to decide whether breastfeeding was more important than the development of the bond between father and baby. Each decision is made by the court, after careful and thorough analysis of the facts of the case. Years ago, an idea developed in the courts that children under 5 simply needed the nurturance of their mothers and the law has remained that way. The problem is that once a status quo is obtained, it tends not to change, creating an uphill battle later unless the mother seriously goes off the deep end. Couples would do well to plan these issues together. Or else, it’s a no win situation.

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