There was once a presumption that children should always stay with their mother following a divorce. Most states no longer honor that presumption, however. (In fact, some states have passed laws stating that there is no custody preference for women over men.)
Despite this change, mothers are still more likely to get custody when parents divorce. State laws vary as to what courts must consider in determining custody arrangements, but the general standard used today is that the custody award must be in the “best interests of the child." And, the factors court consider in discerning where those best interests lie are more likely to favor mothers, as most marriages are structured.
If they can put rancor aside, most parents would agree that their child's best interests should prevail. But, if you are a divorcing dad, you should know some of the factors courts commonly consider in making this determination -- and what steps you can take to show your parenting skills. Whether you are trying to get joint physical custody, sole custody, or simply the most generous visitation with your child possible, you'll need to know what the judge will look at when deciding custody issues.
Who Is the Primary Caregiver?
One factor in determining custody is which parent has been the primary caregiver for the child. Some states actually use the term "primary caregiver"; others refer to the parent who is best able to meet the child's needs, who is most willing to accept parental responsibilities, or who has been caring for the child.
Regardless of the terms used, the primary caregiver standard tries to determine which parent has been responsible for meeting most of the child's daily needs, such as feeding, bathing, playing, waking and putting to bed, making doctor appointments, arranging for child care, and so on. In some families, these tasks are truly shared between the parents. And of course, some stay-at-home dads bear most of the responsibility for their children. However, even though more women work full time now than in the past, women are much more likely to take on the primary caregiver roles.
No matter how much or how little involvement you have had in handling these daily tasks so far, you should start taking on as many of these daily tasks as make sense for you, your spouse, and your child. After all, you will have to start handling all of these activities after you divorce, at least when your child is with you. And, the court will look at your history of performing these tasks in determining custody.
Another factor courts use in making custody determination is the relationship between parent and child. The younger the child, the more likely it is that the bond between the mother and child is greater than the bond between the father and child. This is not a reflection on the father as much as it is a reflection on typical parenting roles when children are young. A mother is typically the one to feed the child from birth through the toddler years and that closeness allows for a different kind of bond than a father might have with a child. Mothers are more likely to take more time off work or stay home entirely with their child than fathers. As a result, young children tend to look to their moms first for basic daily needs and emotional support.
The more involved a father can be with his infant and young child, the closer the bond will be. Especially if you want joint custody, you will need to learn how to provide the support and care your young child needs.
Relationship With the Other Parent
In many states, the law presumes that children will be best served by having a meaningful relationship with both parents. One factor many courts consider in determining custody is therefore whether one parent is more likely to foster a healthy relationship between the children and their other parent. A parent who has tried to poison the child's relationship with the other parent or refused to allow contact with the other parent won't fare well here, unless there's a good reason (such as child abuse or domestic violence).
You can help your custody and visitation chances by staying civil and respectful towards your spouse, especially in front of your children. Experts tell us that children of divorce fare much better if their parents don't use them as pawns in an ongoing battle, but instead allow the children to maintain a positive, healthy relationship with both parents. It's best for your children, and it will be best for you in court.
Getting Legal Help
A father wishing to get joint or primary custody of his child following a divorce action should consult an experienced family law attorney. An attorney can explain the factors the court will consider in determining custody and help you try to prove that you would be the better (or an equally good) custodial parent. Laws differ from state to state, and conventions differ from judge to judge. An experienced local attorney will know how your court and your judge typically decide these issues, and help you put on the strongest possible case for custody. A lawyer can also help you negotiate a custody arrangement with your spouse.