Fathers and Child Custody

Given the number of divorces occurring today and the number of families with children, it is not out of the question that a parent will go through a custody dispute. Custody disputes have the potential for becoming some of the most bitter court battles that arise from a marriage. Obviously if husband and a wife are going through a divorce, it will benefit them and their children immensely to resolve as much as possible without having to go to Court. The main way this is done is via an agreement, but that is not always possible. When a custody dispute does arise, if there is one child and both the mother and father are seeking custody it is apparent that for a sole custody arrangement to be granted, only one parent can have custody.

So the question that arises for the fathers in such a situation is, “Can a father prevail in a custody dispute over a mother?” The answer is yes; however, where one father may gain custody, another may not. The reason comes in understanding the different factors a Court may examine in determining the issue of custody and how you can make the best of your situation if you are in a custody dispute.

First, it is necessary to understand some of the background in the area of custodial disputes. It was not to long ago that some states had legislation that gave the mother a presumption in custody disputes; however, this is largely a thing of the past. Today, most states us the approach of determining what is in the best interest of the child and many courts attempt to maximize each parent’s time with their children. The concept of best interest of the child is easily stated, but in application, understanding it is somewhat more complicated. If there is a dispute as to custody, then this determination will have to be made. So, this brings us back to the initial question – “Is it possible for a father to gain custody of his child or children?” As I said, the answer is yes and to do so, it must be shown that the best interest of the child will be best served by the father having custody.

In the past, it was frequently a straightforward proposition. As much as it was a stereotype, the father was the breadwinner in the family and the mother stayed at home caring for the child. In a divorce, the father would still continue to be the breadwinner and would support, to a large degree, the mother who may not work and would still stay home with the children. However, in today’s world, it is more common for the mother, before and after any divorce, to participate equally in the workplace. This leaves a situation where child daycare is a reality, leaving neither parent at home with the children. As there may be no clear custodial parent, in keeping with the standard set out above – the best interest of the child – other factors must then be evaluated and examined to determine which parent is the best suited as a custodial parent. While the application of the different factors varies from state to state, there are a number of common points of which any father seeking custody should be aware.

First, child custody is not something that you can just decide you want and have it awarded. While there are limited scenarios where one parent is unfit and the other parent is thrust into the custodial role, largely any custodial claim will be some time in the making. This means that if a divorce becomes a reality and prior to the beginning of the divorce you, as a father, were not involved in the child’s life or your involvement was limited, your chances or gaining custody are diminished. In other words if you weren’t involved in the day to day aspects of your child’s live previously, there are fewer guarantees that you can be the sole custody parent following the divorce. If there is evidence that you would look to third parties to take care of the majority of your child’s needs, then your chances are also diminished. As well, if it is shown that your motives for custody are to actually seek to harm your spouse, you will likely not gain custody. You want to be able to show the Court that your involvement in the past has been such a part of your child’s life that it would be contrary to their best interest to have your involvement end or limited.

There are things that you can do to better position yourself for a child custody dispute; however, much of this is common sense and is likely being done already by any individual that is truly involved in their child’s life and would genuinely seek custody. However, some of the things you can do are (however, understand this is a short overview of a much longer list):

– Be involved in your child’s medical checkups and care.

– Be involved in the day to day activities of your child such as feeding, bathing, getting ready for bed and up in the morning.

– Be involved with your child’s school work by aiding in homework and getting to know their teachers and school staff.

– Spend one on one time with your child outdoors, playing or reading.

– Take your child to or pick them up from school or daycare.

– Get to know their friends and friend’s parents.

– Be careful in abdicating any responsibilities in regard to your child.

– In short, be a factor in your child’s life.

If you are in the middle of a custody dispute, in addition to showing that you can take care of your child, you also need to show that you will encourage a productive and full relationship between you child and your spouse. It would be wise to develop a schedule to show your proposal as to the amount of time your child would spend with you and the amount that they would spend with your spouse after your divorce. Show regular times, weekend times, holiday and summer periods of times. Allow for email contact and phone calls. Show how you would keep them informed of extracurricular activities and your child’s progress in school. This will show the Court that you not only want to have your child with you, but you also want to see your child have a productive relationship with your spouse. However, be warned, this is a balancing act. Custody disputes will likely become quite bitter. This will mean attacking the conduct of your spouse. You cannot say your spouse is evil incarnate but you want them to have your child in their care a substantial amount of the time. It is sometimes necessary to point out any obvious shortcomings or problems your spouse may have, but if this is your focus, you will appear vindictive and this can harm your position. Focus on how you can best provide for your child. Do keep in mind that while you are doing this, you spouse will be doing the same, that is, building a case to show that they are the best parent to have custody of your child and why your time with your child should be limited.

In order to get past this obstacle, Courts typically use some form of custody evaluator to provide an unbiased overview of the custodial situation between you, your spouse and your child. Many states call the individual that performs this task a Guardian ad Litem, others a custody evaluator or investigator. Regardless of the title, this individual, sometimes an attorney, sometimes a lay person, interviews the parents, the child or children if they are old enough, observes the child or children with both parents, talks to friends, family, doctors, teachers, therapists and anyone having any information related to the case. This individual reports back to the Court with their findings and in some states even provides a recommendation to the Court on the issue of custody. This individual may also recommend that the children and the parents submit to a formal custody evaluation done by a professional custody evaluator. Should you, as a father have to go through this process, it will be important that you address why you are the better choice of a custodial parent, that you will see to it that your spouse has a full and productive relationship with your child and, most importantly, that you refrain from preaching and dwelling on the shortcomings of your spouse. Remember, if you spouse has these shortcomings, the other professionals that are involved will be aware of them.

As you work through the process of your child’s custody, you may want to consider a split or shared custody or some other time sharing arrangement with you spouse. Also, if you or your spouse moves away from the area where you lived as man and wife, a more creative custodial arrangement will have to be determined. Ultimately, it is possible for you as a father to have custody, but you must be prepared to make some sacrifices in your life to exercise you rights as a custodial parent; however, it shouldn’t be any sacrifice if it is for the benefit of your child.

There are a variety of resources available at online and retail booksellers on the issue of fathers and custody. As well, there are also a number of resources available on the web. Do a search for “Father” and “Custody” and follow the links from there.

This article is not offered as, nor is it to be construed, as legal advice, nor does it create any relationship, attorney/client or other, between the author and the reader. To obtain any legal advice, consult an attorney licensed to practice law in your state.