When Will Fathers’ Rights Be Applied in Child Custody?

By |2019-10-24T05:02:11-05:00March 19th, 2018|

Fathers Rights in Child CustodyYou and your wife are calling it quits. You’re ready to move forward with a divorce. The decision may have been excruciating and years in coming, or it may have been a light bulb moment and you haven’t looked back since. Your marriage is definitely over, but what about your kids? You and your wife will be forever linked to your children, never more so than when they are young and under your care. You love them dearly, but you can’t continue living with their mother. More decisions must be made – about where and with whom they will live.

Fortunately, if your divorce is like most, your wife and you have both put the interests of your children above any antipathy you have for each other. Either with each other directly, or with your lawyers as intermediaries, you have crafted a custody arrangement that will provide the most stability and happiness possible for your kids. Such a plan will look a little different for every family, depending on a variety of factors such as where everyone winds up living, schooling choices, extracurricular activities, and employment. Your plan might include details about holidays and summer breaks, doctor and dentist visits, and possibly even time set aside for grandparents. In an ideal world, you and your wife are both willing and able to compromise and work together for the sake of your children.

Alas, not every divorce and custody planning go that smoothly. Approximately 10% of divorces with children wind up in a custody dispute ultimately settled in court. And as a father, you must be ready for a rocky ride.

Divorce and custody laws are written and enforced largely at the state level, making every state a little different from the next. One thing they have in common, though, is that few if any of them are written in favor of dad. This hasn’t always been the case. Ironically, in colonial America, children were presumed to belong to the father (back when women couldn’t vote or own property). Only in the last 100 years or so did that viewpoint flip to presume children were best left in the care of their mothers.

Looking at mothers as the default parent was reinforced by decades of “traditional” gender roles, with mom staying home with the kids and dad heading out to work every day. But even though there are few of these “Leave It to Beaver” style homes left in America, the bias favoring mom as the better parent persists. Now, nearly 70% of married American mothers work outside the home. At the same time all the moms started leaving for work, dads started spending more time taking care of the kids – nearly tripling their childcare efforts from 2.5 hours a week in 1965 to 7.3 hours a week in 2010.

Fathers Rights in Child Custody

The modern American dad is hands-on (when he’s not out earning money). He’s changing diapers, driving carpool, and helping with homework. Dads are braiding their daughters’ hair, coaching their kids’ soccer teams, and cooking dinner for everyone. Long gone are the days of dads hiding behind the evening newspaper in the recliner while kids play in the next room.

Gender roles have evolved into a much more equitable state. Numerous modern studies demonstrate the myriad benefits of having a father be active in their child’s life. Kids who spend time with dad are more likely to succeed at school; they are less likely to do drugs or be delinquent; and overall, they are healthier, both mentally and physically. But child custody laws are lagging behind. Bias against dad assumes that women are somehow biologically superior parents, even though there is no research that bears that out.

But change IS coming. Slowly. The 1970 laws on divorce used the “best interests of the child” standard. That may seem like an ideal approach, but “best interests” was usually interpreted as “least disruptive,” which in turn meant remaining in the home. Remaining in the home usually meant living with mom, since she usually got the house in the divorce settlement. Most custody awards were “sole custody” to mom (unless she was mentally ill) with the non-custodial parent, dad, being given only visitation rights. Kids slept at their father’s apartment every Wednesday and alternate weekends, giving him precious little time to build a solid relationship with them. Sole custody also gave mom nearly unilateral decision-making prerogatives, with dad getting no official input on school or summer camp or braces or anything else. These “Disneyland Dads” felt pressure to make every brief moment fantastic, which ultimately resulted in a fake and unsatisfying relationship for both the kids and him.

Not until 1991 did most states finally have laws in place which even offered joint custody as an option. There are no states, now, that make legal presumptions based on gender, but they do sometimes give custody to the parent who has been primarily responsible for raising the kids. Since it is usually the mom who takes more time off after giving birth to raise young children, this approach is implicitly gender-biased against dad.

Despite the option of joint custody, many divorcing dads still feel shut out of their kids’ lives. Not surprisingly, dads don’t feel they should have to go to court half a dozen times, utilize multiple attorneys, and watch years pass as they try to get more time with their kids. Children grow up in the blink of an eye and no one has time to waste on protracted legal maneuverings.

Dads want more. Dads across the country (and the world) are organizing themselves to advocate for legislation that guarantees good dads more time with their kids. By the end of 2017, 25 states had recently considered (or passed) “shared parenting” laws of one kind or another. Going above and beyond joint custody, shared parenting is a legal arrangement in which the parents commit to sharing everything about their kids’ lives. It is not necessarily an exact 50-50 split of time, but an opportunity for both parents to remain central fixtures in the lives of their children. Dads want to be there for the big stuff – first steps, the lead in the school play, a first love – but they also want to be there for the everyday – loading the dishwasher, walking the dog, watching a football game on TV. Shared parenting allows and encourages all of that.

Change is slow. And, of course, there are some who object to this kind of forward progress. Change is scattered and inconsistent as well since custody law is governed state by state. Some states, like Arizona, act as a model for modern custody settlements, while some states, like New York, lag far behind the rest. It seems only a matter of time before all 50 states are committed to keeping dad involved in his kids’ lives, but if you’re divorcing right now, that change may not seem fast enough.

Divorce is difficult. Child custody planning can be excruciating. One of the best ways to ensure you’ll have a loving and lifelong relationship with your children after divorce is to produce a fair and equitable custody arrangement as soon as possible.  Levoritz Law Group has extensive experience in matrimonial law with multiple attorneys committed to successful client outcomes. Complicated problems demand sophisticated solutions. Click here to schedule a free initial consultation or call us at 718-942-4004.


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