There are many misconceptions when it comes to the rights of fathers in a divorce situation. Some dads are despondent because they are under the impression that they have no rights. Others overestimate their rights. Here are some common misconceptions I hear in my practice:
“I am the mom; therefore, the kids go with me.”
There is no statute or case law that automatically provides that mom will have primary care of the children in a divorce situation. The courts look to see who has been providing care for the children. While it is true that Mom is the primary caretaker in many traditional families, there are many dads today who share parenting duties with their spouse equally. Occasionally, Dad has been the primary caretaker. The court leans toward stability for the children and therefore examines the current situation in the family. It is important for a father seeking equal shared custody to be actively involved with caretaking for the children early on.
“I will take the children because Mom can’t afford to care for them.”
This is a bad tactic – and not a very effective one. The person with the money is not the issue. The court will determine what is in the best interest of the children and will then order child support from the parent with greater earnings. Sometimes women believe these types of statements regarding money and agree to a settlement that is shortsighted. Some may even give up on gaining primary custody.
Another mistake sometimes made by divorcing parents is leaving the children behind, intending to return to gain custody later when a better home is established. Unfortunately, once the parent leaves, his or her bargaining position is greatly diminished. It is critical to establish a pattern of being a major participant in parenting the children.
“When my children are older they will be able to determine where they want to live.”
This is a very common misperception and is also very wrong. The age at which a child can determine where he or she wants to live is 18, i.e., when he or she is no longer considered a child. I hear many people speak with great authority about a magic age when children can decide. Even some lawyers believe this is true. Some insist it is 14, others say 16, and some don’t know what the age is but are certain there is such a law. There is not.
There are situations where a representative is appointed to represent the children and perhaps this representative (Guardian ad Litem) will give some weight to the children’s preferences; ultimately, the GAL makes a recommendation based upon the best interests of the children.
“I want to do what is right for the children and I want to reduce conflict.”
Good answer! Child development experts agree that conflict during a divorce is harmful to children, but that the impact of a divorce can be minimized by parents willing to work together in developing a parenting plan that truly puts their children’s needs first.
Cooperative divorce reduces stress on the parties and on the children. Emotional trauma is minimized – and it certainly costs less.
