A common assumption by newly separated or divorcing men is that they have fewer rights to their children than the child’s mother, and will be given short shrift by family courts when it comes to custody matters. However, this is untrue.
Why do fathers believe that they are unlikely to get equal treatment in custody matters? Why does it sometimes seem as if mothers are given preference? What are a father’s rights, and what does he have to do to assert them when separating or divorcing from the mother of his children?
Take a look at what you need to know about fathers’ rights in family court.
Historical Child Custody Imbalance
The misperception that men are discriminated against in custody matters may stem from the fact that at one time, it was commonly believed that men should naturally be the breadwinners of the family and that a woman’s role was to stay at home and care for the house and the children. Because of that belief, when a family was broken up by divorce, it was relatively common for women to end up with custody.
After all, they were already primary caretakers and often didn’t have job skills that they could use to support themselves and their children. So, mothers were given custody and men were expected to continue to provide financially for their children’s wellbeing. However, by and large, society has moved away from the belief that men and women naturally belong in any particular role.
Many women, married, single, and divorced, work outside of the home. And a smaller, but still significant number of men are now primary caretakers of their own children. More commonly, couples strive for an egalitarian approach where both parents contribute to both the household finances and child-rearing duties.
Modern Custody Laws
Not only have societal attitudes changed, but laws have changed as well. In most areas, family courts acknowledge scientific research that suggests strongly that outcomes for children are better when both parents are actively involved in their lives. That means that courts are usually willing to facilitate active participation by both parents when it comes to deciding custody.
It’s become relatively rare for one parent of either gender to be awarded sole custody without any involvement by the other parent unless there are extreme circumstances in play, such as child abuse, neglect, or other circumstances that would render one parent unfit. More commonly, family courts prefer to award some type of joint custody, with both parents having some amount of parenting time, though that time may not be exactly equal.
Why Don’t More Dads Have Custody?
If you take stock of the divorced couples you know, it might look to you as if the mothers of the children involved are still doing most of the parenting, and statistically, they probably are. If that isn’t because of family court bias, then what is causing this imbalance? A look at the way that custody is usually decided provides the answer. As it turns out, family courts don’t make the decisions about who has how much parenting time in the majority of cases.
In 51 percent of custody cases, both parents simply come to an agreement on their own accord that the mother will have primary custody. Only a small percentage of custody cases ever go to trial, and very few of those go all of the way through the litigation process. This means that it isn’t family courts deciding that mom should be the primary parent – at some point in the process, it’s mom and dad deciding that mom should be the primary parent.
It may be that fathers don’t pursue custody as aggressively as they could because they have a belief that they’ll be discriminated against in court, or because they prefer not to put themselves and their children through the process. But the statistics don’t support the idea that courts are biased against fathers, they suggest that fathers simply don’t pursue custody in the first place, or don’t follow through if they start to pursue custody.
How to Assert Your Rights as a Father
This is good news for fathers who do want to assert their rights to share custody of their children, though. The laws are on your side – they encourage shared parenting – and the courts are not biased against you. You can absolutely be awarded equal parenting time if you’re a fit parent and you’re willing to advocate for yourself.
Divorcing fathers who were married to the mother of their children at the time of each child’s birth are generally automatically assumed to be the legal father of the children and don’t have to do the legwork of establishing paternity first. They can simply petition the court for the custody arrangement they want as part of the divorce proceedings – or, if the divorce is already over with and a custody arrangement already exists, they can ask for a modification that allows them more parenting time.
Fathers who were not married to their child’s mother at the time of the child’s birth may have more hoops to jump through. Depending on the state, they may have to take certain steps to establish paternity. These steps can range from signing a document to taking a DNA test, depending on the location and the circumstances of the case. But once paternity has been established, the same rules apply – unmarried fathers who are established as legal fathers have equal parenting rights to mothers.
It’s understandable for fathers to be concerned about their ability to continue parenting their children. Divorce or separation from a romantic partner is already an emotional and upsetting time, and adding child custody questions into the mix can make the situation even more fraught. However, fathers should know that research suggests that their children will do better if they have involved fathers, and should take the initiative to ask for a custody arrangement that allows them to stay an active presence in their child’s life.
A legal resource group like National Family Solutions can help dads find the resources they need to advocate for themselves in family court.