Mom or Dad: Who Gets Custody?

By Staff Writer

As today’s families evolve, the picture of the "typical" family is ever changing. Gone are the days when it could be assumed that the mother stayed at home to provide primary care for the children while the father served as the family breadwinner. Until fairly recently, many states enforced a doctrine known as the "tender years presumption". Under this doctrine, it was presumed that the mother should be granted primary custody of the children. This is no longer the case. During a divorce or separation, it can no longer be assumed that the mother of the children will automatically be entitled to child custody. The law, like society, is ever evolving. Today, many states have laws that expressly declare custody litigation as "gender neutral".

This does not mean that father’s seeking custody of their children do not face special challenges. Judges and juries are human and bring to the table their own biases and prejudices. Preconceived notions of gender roles are all too common and fathers who have been through custody litigation often complain that they faced scrutiny and challenges that would not exist but for their gender. These biases can, however, go both ways. A mother can no longer assume that strictly because of gender, the father of her children does not stand a chance of obtaining custody of the children.

If you are a father considering seeking custody of your children, do not assume that you cannot obtain custody. However, you should assume that your battle may be uphill, and you must acknowledge that societal prejudices and biases exist. You will have to take special care to build your case and make it as strong as possible. It is critical that you retain an attorney who has obtained custody for a father in your county. Do not hire inexperienced counsel for this job.

A critical issue to either parent’s request for custody will be the parties’ history of caring for their children. It is often the case that the parent who was the primary custodial figure for the children prior to separation or divorce will continue to be the primary custodial parent. Another critical issue is often the role of child support in motivating a request for custody. Judge’s are particularly suspect of litigants who seek custody when it is apparent that their desire is really based upon a goal of reducing the child support that they might pay.

We advise fathers who have not been involved with the primary care of their children that they may have a case that they cannot win. This is particularly the case when there is a "stay at home" mom able to provide for the children’s daily needs. We also advise mothers who have been stay at home moms that they are more likely to retain their primary custodial role. This issue simply comes down to a court trying to maintain some semblance of "status quo" for the children during a time of upheaval.

However, simply because a father cannot win primary custody does not mean that a father cannot or should not work towards a more complete or even shared schedule with the children. It simply means that obtaining primary custody might be difficult or impossible. A more complete or shared schedule can be devised in almost every case and it can provide the children with quality time to build or maintain their much needed emotional bond to both parents.

Documentation is essential in any type of custody litigation. You should make note of facts which are integral to your case. Make note of days on which you provide care for the children, the types of activities you engage in with the children and the tasks you perform for them. If you typically take time off from work to provide transportation to and from medical and other necessary appointments or extracurricular activities, make note of this fact. Also work on compiling as much confirming documentation as possible. If your child’s school keeps records of the parents who attend parent-teacher conferences, obtain copies of those records. Anything which you can present to the Court to show your level of involvement in your child’s live will help. Remember, child custody litigation is fact based. You should carefully review with an attorney the facts of your case, and examine with him or her the possible documentation you can gather to support your bid for custody before you even set foot in a Court room.

You should never enter custody litigation with any assumptions regarding what the Court will do based on the gender of the litigants. If you are interested in obtaining custody of your children, be as prepared as possible to present your case to the Court. If your facts are weak, you should consider the trauma to all involved, including your children, and the cost of proceeding to "battle out" a custody issue.

If you are faced with a Judge who appears to have gender based biases, be patient and focus on educating the Judge. As human beings, Judges warm to litigants who are polite and prepared. Being unnecessarily combative with the Judge will not help your case. If it appears that the Judge is biased against you, build your case for a possible appeal. Remember, appellate courts can, and do, reverse decisions of trial courts. A loss at the trial level does not necessarily mean that your case is over.