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.
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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.
Do custody laws contain gender preferences?
No. Today, many mothers work outside of the home and earn an income, while fathers stay home and work as the primary caretakers. There is no gender preference stated in custody laws. With very young children, such as babies or infants, there may be a tendency to give primary custody to the parent that is breastfeeding an infant through the night (which will also be the mother), with few to no overnights to the other parent until such time as the child no longer requires night feedings. However, this tendency has more to do with what’s in the child’s best interests (feeding schedules and sleep routines) than the parents’ genders. If, for example, the father is responsible for night feedings, say if the child is drinking only formula through a bottle, then there may be no need to prohibit overnights. Judges will make these sorts of decisions using a case-by-case analysis of the facts surrounding custody and will then determine what sort of arrangement is in the child’s best interests.
What should you do if you want custody?
If you want to fight for custody of your children, you need to get help from a qualified divorce attorney who is experienced in custody issues.
One common misconception in divorce cases is the belief that a mother will automatically be granted custody of the children. However, this simply is not the case. In reality, determining child custody is a far more complicated process than many people realize.
Statistically, it’s a fact that mothers are more likely than fathers to be awarded custody during divorce proceedings in the US. However, the myth of mothers always earning custody is a thing of the past. In many cases, mothers are also income earners, while fathers have taken on more traditional child-rearing duties. There is no implicit bias in the courts based on the gender of the respective parents during a divorce. Decisions pertaining to child custody are based on several factors all designed to ensure a decision that is in the best interest of the child or children involved. The Courts mostly consider the historical roles of the parents during the marriage in an attempt to maintain consistency for the children involved.
The most important factors that go into the court’s child custody decision include:
• The physical, mental, and emotional wellness of both parents and how capable they are of providing care for their child
• The physical and developmental needs of the child
• The specific relationship and bond each parent has with the child in question
• Which parent is better able to promote and foster a continuing, healthy relationship between the child and the noncustodial parent.
• Any history of parental abuse, domestic abuse, neglect, or anything else that can put the child at risk
• The preference of the child (as long as they are at least 11 years old according to Georgia state law)
• The criminal histories (should they exist) of both parents.
How Can A Mother Lose A Custody Battle?
There was once a time when, during divorce, a mother would automatically have custody of her children. But now that things are changing, you might be asking: how can a mother lose a custody battle for her child? Is it possible to lose custody of your children even when you’ve been raising them yourself all this time?
Although the increase in the number of fathers gaining custody of their children during a divorce (or separation from their partner) isn’t exceptionally high, the possibility of this happening in your case still might cause you stress. After all, even if you’ve been awarded custody of your children, that decision can still be reversed if your ex challenges your rights to custody based on specific grounds.
So, if you’re worried about the possibility of losing your right to child custody and no longer being able to care for your children, you need to know what factors can lead to that.
Still, some mothers have had their custodial rights revoked because they made the mistake of committing any of these transgressions.
A mother who is proven to have physically and or psychologically abused her children is highly likely to lose custody of her children. Examples of physical abuse include hitting, kicking, scratching, biting, burning, physical torture, sexual abuse, or any other type of injury inflicted on the child by the mother.
Psychological, emotional, or verbal abuse is usually manifested in many ways, including the following:
• Rejecting the child or making them feel worthless or useless
• Demeaning, ridiculing, humiliating the child
• Terrorizing a child through threats of physical violence, destruction of their possessions, or abandonment
• Isolating a child or preventing them from socializing with others
• Exploiting, manipulating, or corrupting a child or encouraging them to engage in deviant or inappropriate behavior
• Ignoring or being indifferent to the child
Note that even if a child is unable to articulate the psychological abuse, child psychologists, social workers, and other experts also look for social and behavioral signs of abuse. These include problems in school, sleep and or eating disorders, depression, anxiety, anger management problems, and rebellious behavior.
When the court receives sufficient evidence of a mother’s abusive conduct, it is authorized to change current custody arrangements if doing so will be in the children’s best interests.
Violence at home
If it is reported that the mother is abusing other members of the household (not the children), she can still lose her custodial rights.
Domestic violence is not something children should be exposed to, as this can harm their psychological development. Moreover, domestic abuse can escalate anytime, thereby exposing the children to potential harm. So if the mother is proven to engage in such abuse, she can have her custody revoked.
Fabricating lies about abuse
A mother making false allegations of abuse against the other parent can lose custody if it is proven that the accusations are all fabricated. It will be much worse if it is discovered that she used her children to deceive whoever has investigated her allegations, as well as the lawyers and the court. This could lead to not only the loss of a mother’s right to custody but also visitation rights.
Neglecting to provide the basic needs of your child, including access to health and education, is also a ground your ex can use to reverse the court’s decision to grant you custody.
Child neglect is actually a form of abuse, and it encompasses other things like:
• Not providing shelter
• Not keeping your child clean and well-groomed
• Not supervising your child
• Not taking your child to important scheduled appointments
Children who are left to their own devices become unduly exposed to danger or threats to their safety. They can contract a disease and are also at a higher risk of developing mental illness.
Here, you need to remember that minor or rare infractions, such as being late to pick the children up from school or not being able to keep a routine doctor’s appointment, won’t automatically lead you to lose custody. These things can happen to anyone, and the court understands this. Long-term, consistent neglect is something else, and if it threatens your children’s well-being, the court can intervene.
Severe mental health issues
Mothers (or parents in general) who have mental health issues are not automatically disqualified from having custody of their children. However, according to Mental Health America: “Custody loss rates for parents with mental illness range as high as 70-80 percent, and a higher proportion of parents with serious mental illnesses lose custody of their children than parents without mental illness.”
Then again, the other parent needs to provide the court sufficient proof showing that the mother’s mental state or psychological issues compromise the safety of their children. Also, since matters like these are sensitive and grave, the court may require parents to undergo psychological testing, as well as counseling and interviews by experts, before making any decision.
Drug and alcohol abuse
A mother who is proven to have demonstrated a dependency on prohibited substances or drugs and or alcohol runs the risk of getting her custody and visitation rights revoked. If a mother has these addictions, it puts to question her fitness and ability to care for their children. Moreover, children of drug addicts and or alcoholics have a higher risk of suffering from neglect, being abused, and imitating their parent’s behavior by picking up similar bad habits.
If a mother is suspected of substance abuse, the courts might require her to undergo drug testing. Although failing a drug test may not automatically rescind her custodial rights, it would likely influence the court’s final decision.
In Utah, children are encouraged by law to have regular and frequent contact with both their parents in a process called co-parenting. In such cases where parents share visitation and custody rights, they are legally bound to follow the custody arrangement.
Mothers who attempt to damage the image of their ex-partner or co-parent, or who physically withhold the kids from the other parent are guilty of parental alienation.
Making derogatory or degrading comments about their co-parent to turn the children against the other parent is simply unacceptable behavior. A mother who makes a habit of setting important appointments or trips that lead to the father not being with his children on their scheduled time together can also be accused of causing parental alienation.
If the father keeps detailed notes of those instances where the mother finds ways to sabotage his supposed time together with their children, these can be used as evidence against her. So, mothers (or fathers) guilty of committing these things could have their visitation and custodial rights limited.
Failure to commit to parental responsibilities
A mother could have her children’s welfare at heart and may genuinely want to raise her children. However, if she is always away (even on business), working multiple jobs, in military service, or engaged in anything that takes away precious time from her children, it can put her custodial rights at risk.
A father in a custody battle can use this as a weapon against the mother to gain custody of their children. Since family courts are primarily concerned with ensuring the children’s interests are protected, they would prefer to award or transfer custody to the parent who will be there for the kids.
Therefore, if you are in a similar situation, you need to speak to an attorney and make changes to your lifestyle or work arrangements. Do this before things get out of hand and your custody gets challenged.
Court order violations
A mother can violate a court order in different ways, and the consequence of any violation can lead to the withholding of her custodial rights. Such violations can be in the form of abuse and neglect of the children.
If the court orders a shared custody agreement where she and her co-parent have equal custody and visitation rights, and she fails to comply or interferes with the parenting time, she is considered to be in violation of the court order.
When a mother exhibits nonconforming behavior or shows herself to be unfit to care for and protect her children, she may lose whatever custodial and visitation rights she has.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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