Fathers generally have a harder time getting custody of their children, especially when battling for full custody. That doesn’t mean it’s impossible – and you might not want to be so quick to rule out a cooperative solution either. Before dismissing custody court, it helps to understand your child custodial rights and chances and learn what you need to know to get the best possible shot at spending as much time with your children as you can.
Understanding Your Child Custodial Rights
Generally speaking, the courts do not decide who gets custody based on gender. If we’re talking from a strictly legal point of view, fathers have the same basic child custodial rights as mothers. If you are married to a woman and have a child together or adopt a child together, you are both that child’s parents and guardians and have a right to custody. There were once laws benefitting mostly fathers in custody battles, and then laws benefitting mostly mothers.
But many years ago, lawmakers and courts decided that basing a custody decision on the gender of the caretaker rather than their competence is simple and pure discrimination. So why do mothers still overwhelmingly win most sole custody cases? There are different theories. For one, it has something to do with the court’s criteria for how an ideal parent is chosen in cases where sole custody is the only potential outcome.
Sole custody is usually only accepted when one parent renounces custody, or there are grounds to consider the parent is unable or unfit to care for their child. In such cases, the court decides what is in the best interests of the child. As such, the courts appoint a primary caretaker who:
- Knows their child.
- Spends the most amount of time with them.
- Feeds them.
- Changes them.
- Knows their friends and interests.
- Talks with the parents of their friends.
- Interacts with their teachers.
- And more.
Finances are out of the picture because of child support, so the main question the courts ask is: which parent has thus far done the best job of caring for their child? Because gender roles still play a major role in how labor and childrearing are managed in the household – especially during COVID – it’s no wonder that most sole custody cases end with custody being awarded to the mother. It’s hard to be a working mom or dad, and few households equally split their childrearing and childcare duties.
Currently, married fathers spend an average of about 6.5 hours a week taking part in primary childcare activities, versus 12.9 hours for the average married mother. When custody is awarded to the father, it’s because he was the ideal caretaker for the child in that situation – which does happen – and because there were grounds to rule the mother out as a cooperative caretaker – which, again, also happens. It just happens much less often than the other way around. Presumably, the closer we come to gender parity when it comes to childcare, the more the statistical scissors close on sole custody and gender.
But what if you weren’t married when you decided to split up and started fighting about custody? Blended and unmarried families are becoming more common. While most laws are still written around the nuclear married family, there have been adjustments to address the increase in unmarried couples with children. Fathers who are not married will need to prove paternity through a DNA test if they want to fight for joint or even sole custody, if:
- The father wasn’t previously named on the birth certificate, or;
- The mother hasn’t added the father to the birth certificate retroactively.
To establish paternity, you need to sign a Voluntary Declaration of Paternity and choose to take a legal paternity test (DNA test) to prove that you are the biological father. Note that a paternity test is not enough to initiate a filial relationship if the child already has a long-term father-child relationship with their stepfather, for example.
Factors Considered When Courts Determine Custody
Suppose you’ve decided to fight for joint or even sole custody, congratulations! Now comes the hard part. The courts decide whether any given parent is a right fit for their child based on two things:
- The relationship between the parents, and;
- The relationship between the parent and their child.
The latter is the most important, and courts will usually always favor what they find in the child’s best interests. As such, joint custody has been the favored outcome by most custody courts for some time now. The courts recognize that children tend to do well when raised by two divorced parents – provided the parents cooperate – due to pooled resources, more support, larger family, and other factors. To that end, you have to prove that being in your child’s life is important to them and good for them.
Establishing and Protecting Your Child Custodial Rights
There are a few ways you can help your cause while fighting for child custodial rights, including (but not limited to):
- Be cordial to the other parent. Causing a scene, fighting, raising your voice, or getting physical will reflect awfully on you. On the other hand, provoking you to do any of these things can reflect awfully on her.
- Be sure to work with professionals. Legal professionals will advise you on how to be on your best behavior, what to do and avoid, and how to navigate the complicated world of custody law.
- Focus on the kids. They’re the priority, after all – not the fight with your ex.
- Be presentable. Be polite, dress smartly, pay attention to your tone and words.
- Be punctual. This applies to everything: court dates, child support payments, mediation meetings, visitation, picking up the kids, dropping them off, etc.
Remember What You’re Fighting For
And don’t give up hope. If you’re fighting for sole custody, the road towards finally ending the battle is long and harsh. If you’re looking to figure out a way to share custody and see your children as often as possible, still be prepared to do everything in your power to prove the purity of your intentions and your competence as a father and single parent.
More often than not, when fathers fight for child custodial rights or visitation, they get them. If you’re married, then you can work with a family law professional to find a compromise with your ex-spouse (through mediation or other means) and share custody, a result typically sought after by the courts.
If you’re unmarried, you can still aim for shared custody by going through the steps necessary to establish paternity and your father-child bond. The chances of getting full custody are a little lower, mind you. They are based mostly on whether there are any grounds to refuse custody to the mother (such as mental instability, violence, domestic abuse, drug use, and other factors that might endanger the child).