Before and during the divorce process each parent has the same legal right to custody of a child. Mothers and fathers are on legal standing until one or the other gives up or is denied full custody rights.
What does this mean? It is complicated! Even more complicated if you don’t know your state’s child custody laws. Bottom line, until you have signed a custody agreement or a judge has handed down a custody opinion, each parent has the same legal rights when it comes to where a child lives, who the child lives with and anything regarding the child.
I’ve found that most fathers do not have a clear understanding of their legal divorce rights where the children are involved. And in most cases will give up custody out of fear of losing in court due to a gender “bias.” Which is a myth perpetuated by men’s rights organizations. A father has as much chance of winning custody if he pursues custody as a mother.
For example, I received an email from a father who was separated from his wife. He wrote, “My wife moved out with our children, and is refusing to allow me to visit with them. I found out the other day that my youngest daughter had been hospitalized for a minor illness and I wasn’t informed. What should I do?”
It is heartbreaking to hear from a father who, for some reason has come to the belief that his wife has more legal rights over the children. This father has the legal right to pack his children up and bring them home. He has the legal right to contact school personnel, pediatricians and anyone else who may have contact with the child and let them know he is being denied his legal rights and demand to be notified of anything concerning his children.
The longer he allows his wife to make the rules about how or if he can parent his children, the more likely he is to lose an extensive amount of parenting time with his children in divorce court. In my opinion, this is the biggest mistake fathers make during the divorce process. They do not take the necessary steps needed to retain equal parenting time or full custody of their children.
According to DivorcePeers.com, the majority of child custody cases are not decided by the courts.
- In 51 percent of custody cases, both parents agreed — on their own — that mom becomes the custodial parent.
- In 29 percent of custody cases, the decision was made without any third party involvement.
- In 11 percent of custody cases, the decision for mom to have custody was made during mediation.
- In 5 percent of custody cases, the issue was resolved after a custody evaluation.
- Only 4 percent of custody cases went to trial and of that 4 percent, only 1.5 percent completed custody litigation.
What do the above statistics tell us about fathers and child custody?
For some reason, the vast majority of fathers are behaving in a way that is not in their best interest or the best interest of their children. Fathers may be giving up equal or shared custody because they’ve heard there is a gender bias, that mothers always win custody. They may give up more custody because they’ve been taught that “children need their mother.”
Here is the truth, you don’t know if there is a true gender bias in the divorce court system if you don’t go to court and fight for equal time with your children. And children need fathers just as much as they need mothers.
If you are a father who wishes to have equal parenting time with your children you are doing yourself a grave injustice if you give up without a fight.
If your attorney tells you, you don’t have a chance at equal parenting time with your children, look for another attorney. Don’t hire an attorney until you find one who tells you he will help you fight for that time you deserve as a father. And, don’t buy into the argument that the courts are biased in favor of women until you’ve proven to yourself that it is true.
6 Things Fathers Should Think About if They Want Equal Parenting Time After Divorce
- Do not allow your wife to dictate when, where and how often you will see your children. Document every time your ex keeps you away from your children and then use the court system to hold her accountable for interfering in your parenting time.
- Immediately hire an attorney or file a pro se petition with the court to establish equal parenting time with your children.
- Do not allow what you hear on father’s rights websites to dissuade you from attempting to gain equal parenting time or full custody. Just because one man was not able to obtain equal time or full custody of his children does not mean you won’t. You don’t go to work and do your job based on what others tell you, you are and are not capable of doing, do you? Then, don’t give up on your children based on what a few angry men say online.
- Do not let the financial cost associated with a child custody battle keep you from fighting. Which is more important, saving money for a child’s college education or fathering your child during their informative years and beyond?
Society still views mothers as caretakers and fathers as providers. I believe that one reason fewer men fight for equal time with their children has to do with their fear of legal fees and being left financially strapped and unable to provide for their children. When it’s all said and done, your time is the most important thing you can provide for your children. Don’t let money fears stop you from providing them with time with their father.
- Do not agree to less time with your child without first going through the mediation process or, if push comes to shove a full out custody battle.
- Do what you know, in your heart is right for you and your children. Don’t allow your head to become muddied with opinions from naysayers or those who’ve been there before you. When it comes to time with your children, you must let your heart lead what actions you choose to take.
I can’t tell a father what his chances of winning in a custody battle are. I can tell a father that if you aren’t willing to exert your legal rights your chance of winning equal or full custody with your children is zero. The questions you have to ask yourself is; how important is this issue to me? How important is it to my children?
If it is important then don’t allow fear of the myth of a “gender biased” court system keep you from pursuing your right to parent your children.
Never agree to give up any time with your own child. Ever. If the judge decides differently, that’s his right and responsibility; he can impose that, but never ever put the noose around your own neck.
But also be the father they deserve, Be there for them, take them to the doctor, dentist, pick them up after school if they have to stay after. All these things are part of parenting that many fathers never have had to deal with because mothers took care of them. Even if you have to work, this is your parenting time and you might have to leave work early to accomplish what the child may need on your time. If you are sick you still have to parent, I know I do. I cant remember since my divorce when I was really sick and could not parent. But, my ex has, several times he has told me he can’t get our daughter because he is sick. So if they want shared parenting time great, just make sure you can do the job 50% of the time…
After my divorce, and I started dating divorced guys, it became very clear that most of them felt like they didn’t stand a chance in court when it came to custody and it was up to their wife to grant them time. Their wife wouldn’t agree to 50/50, so they ended up with every other weekend. They felt like all fighting in court would do is ensure that they lost to an extra angry ex who controlled their access to the kid and that they’d get stuck them with the legal bill for the fight.
They were shocked that my ex and I shared parenting time equally and wondered “how he did it”. The answer is simple, he made it clear from day one that anything less than equal time was a problem. He said he’d try any schedule and change to another schedule if that one didn’t work. Anything less that that would require a court order. He also said that if I didn’t think 50/50 was the way to go, he’d happily take on as much extra time as needed. As I recall, he said something like “the people that think every other weekend visitation is a good idea are sure that they won’t be the one visiting” (paraphrasing). When we talked about separating, he was insistent that he wasn’t going anywhere without a custody agreement that he could live with.
Another data point…
The other interesting thing about the perception of bias against dads in custody cases is that my husband, who as sole custody of his two children from his previous marriage, feels that there is bias. He should be a shining example of “guys can get custody”. He’s said several times that he won only because his ex was a complete train wreck at the time and she basically gave up custody and didn’t fight his filing for sole. He’s an excellent parent, but from his interaction with the courts he didn’t think that he could have won if she had fought back. He’s said that dad’s will get custody in the severe cases, but when there are two seemingly viable parents, dad’s don’t win coin tosses.
Men who don’t pursue 50/50 custody have no place complaining about a bias in family court. Aren’t their children worth fighting for in court? Even if there is the possibility of losing? These men try to paint a negative picture of mothers when it is them, themselves who didn’t use the court system to fight for their rights. 50/50 custody is presumptive in all 50 states at the moment. I’m a family law attorney and 80% of the fathers who come through my office balk at the idea of 50/50 custody. Your ex isn’t the norm, he is the exception and no mother should be held responsible for the fact that her ex didn’t want more than every other weekend visitation.
Seriously? You do know that sole custody gives him rights over medical, education…everything concerning his children. You’re right, he got sole custody because the mother was a train wreck. Do you know what a father would have to be for a mother to win sole custody? A train wreck! That is just silliness. He had the same odds a mother has. If an ex is a train wreck, the parent is going to win sole custody regardless of gender.
You’ve completely missed my point. Of course he got custody, but only because she was a train wreck. As it should be. But thats not evidence that men are equals in court. He believes that even though he’s a good and capable parent, in a nobody is a train wreck fight, he’d lose.
My point is about the guys perception that they are bound to lose matched what the OP said. They didn’t fight because they didn’t think they could win. I saw it first hand.
Also, unless it was slipped in quietly after the last time it was vetoed, presumptive equal parenting time is not the law in my state. It certainly is a trend and more and more common, but not the law here. When I divorced it was not presumptive and my lawyer was clear that if I didn’t want 50/50 I wouldn’t have to settle for it.
If you are looking to argue about legal custody instead of physical custody, I think it’s pointless. These guys didn’t resent medical decisions, they resented visiting every other weekend. If you are actually a lawyer, then you know the difference between the legal and the practical. Is a parent who has the kids every other weekend really going to be an equal when deciding which school the kids go to? Unless it’s a terribly choice, the winner of the argument will be the one with the significant parenting time, not a coin toss.
The financial side I can only speak to what one of the guys said which was because he was the only one with a job at the time, the cost of the legal fight would either come from him or their marital estate and from his point of view, he was paying her to fight him, and when the fight was over he’d still be supporting her via child support and alimony, but from a significantly damaged financial position. . It was surprising to me to hear he had been ordered to pay her legal bills. Hopefully he got credit for it out of the estate. My divorce was considerably cleaner and we were near equals income wise, so the thought of paying the others legal bills never entered into the mix.
Gillain, your basing your opinion on the “perception” of others? Enough said.
He believes? Just because he thinks it doesn’t make it a reality. It’s hilarious that you will argue with a family law attorney with 20 experience in favor of your husband who “believes” something. I’ve been there, done that. He only has an opinion and it isn’t based on fact.
Lol. Sure. You’re an attorney.
As a matter of fact, I sure am an attorney. Graduated from the University of Washington School of Law. Took the Washington Stage Bar and passed it in 1999. Clerked for Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington. What do you do other than make a fool of yourself on divorce websites?
You are attempting to give advice to someone who hasn’t asked for it on an article about men’s perceptions about child custody and pursuing equal parenting time. My comments are all about men that I know and their perceptions.
If you were an actual lawyer and wanted to participate in the conversation, you’d have plenty of commentary about the subject at hand, not contempt for 1/2 of your potential client base. You’d have a story to share about how dad’s come in to your office wanting equal parenting time, not thinking they can get it, and you showing them that they can. You’d have stories about how they come in wanting 50/50 parenting time, but don’t understand that you can’t have that plan and live 100’s of miles apart. But you didn’t because you are not a real lawyer or if you are, you are terrible at it or at least don’t practice family law. You would know better than to dispense advice, argue with strangers who are not arguing with you, and you’d be able to comprehend a complex post
…. and you’d know that presumptive equal parenting time is not the law of the land.
This is a nice article. I would add that any dad who’s considering a divorce and don’t want standard every other weekend visitation should insist on a parenting plan with what they want BEFORE they move out. That necessarily means talking to a lawyer first as well.
When it comes to the stats you cite, I think what is not being said is the evaluation criteria, the guidance from your own lawyer, and later the mediator during mediation. Where I live, you have to go to mediation first. What are the mediators telling parents they can expect when it comes to custody and parenting time? If the mediator is telling dads that they are going to lose in court, did they really agree? Why put your kids through a custody evaluation if you believe that you are going to lose? I know the form says “agree”, but it seems more like a loss than an agreement to me.
I ended up with sole custody, but the first two lawyers I visited were all about getting me visitation when I wanted equal parenting time. They were advising me that it would not be easy. I ended up signing with the firm that believed they could get me equal parenting time. We ended up having an event that made me getting sole custody easy, but without her screwing up, I sure didn’t feel like 50/50 was going to be automatic or that I had an equal chance if we couldn’t negotiate a plan. I can say that once the event and sole custody request was before the judge, it was gender neutral. Guys saying that judges won’t award to men due gender bias don’t know what they are talking about. Getting to that point, including the criteria to determine the better parent? I sure didn’t feel like an equal or that I could have forced equal parenting time.
Gillian, I didn’t say equal parenting was the law of the land. I said 50/50 custody was presumptive. Big difference! Also, nowhere have I shown contempt for fathers or my client base. Over 60 percent of my clients are fathers. Meaning? I have first-hand knowledge of what fathers ask for when it comes to custody of their children during divorce. Just because I don’t have stories to share about men who come into my office wanting equal parenting time doesn’t mean I’m not a family law attorney. What that means is that men don’t come into my office desiring 50/50 parenting time with their children. I can’t share stories I don’t have to share. In other words, the vast majority of men going through a divorce don’t ask for equal parenting time with their child. I’m not arguing with you, I’m attempting to educate you about the realities of fathers and divorce and child custody. If you’d rather believe the “perceptions” of men you’ve talked to, that is your choice.
Kathy,
Nice article. Something all dad’s should read before they separate. I had the good fortune of having a friend who told me much of the same. Good info, especially with all of the counter info out there and frankly, many lawyers (I talked to a few before choosing one) who are still saying that dad’s will loose and end up paying for both sides of the fight. With my ex wife, I insisted on equal parenting time and following my friends advice, refused to move out without a written agreement. As I understand it, temporary arrangements can easily be come permemant. I also had the good fortune that my wife showed her hand early. I wanted alternating weeks, was open to discussing a plan that would be best for our kids. My wife wanted me to have every other weekend and a visit, but no over night on wednesdays. When she wouldn’t consider even one extra day a month, I knew we were heading for a fight and that there would be problems even with her schedule. I had zero confidence she’d ever say yes to anything on “her time”. I think without that, I would have tried to appease her, hoping that when things settled down, she’d be reasonable. So off to court we went. I wouldn’t say the process was truly gender neutral, mostly because of the criteria, which has had the gender removed, but it sill reads like mom. When we got to the court psyc evals for our kids, she offered a mid week over nights (which totally trashes one of her original reasons for her plan) and I would have gotten in any minimum visitation award anyway, but it was clear to me that she still didn’t respect me as a parent and getting a minute extra for an event would be difficult, so we forged on. In the end, the judge awarded near equal time, which I’m thankful but…. if we are that close, why not equal and why her with 51% of the time? The custody evaluator recommended equal time and had misgivings about my wife actually sharing parenting (the only bad thing he had to say about either of us). My lawyer speculated that the judge wanted to have a winner to help break future ties/disagreements. To me, it felt like gender bias. The system did as best as it could to remove the bias, but it’s still there. At least a little bit.
Thanks for sharing your experience, JD. I’m glad you fought for what was rightfully yours. I don’t know how long ago this was but most state courts are moving toward equal parenting time and that’s a good thing. I have a feeling the judge gave your ex that extra 1% because he viewed her as the party that would be in and out of court over the most inane thing and he didn’t want her on his docket all the time. That, in my opinion, is the wrong tactic to take. Don’t give more authority to the trouble maker! The good news for you is, if she attempts to interfere in your parenting time, you can take her back to court and probably end up with that 51% that she now has. Here is the bottom line…you’ve taught your children their value in your life. No one will ever show them or teach them anything more valuable. Best, Cathy
While we were divorcing, my state was in the process of changing to presumptive equal parenting time. I had high hopes that it would settle our custody issue before we had to fight about it or at least convince my wife that it wasn’t 1950. It passed, but the governor vetoed it. It was telling that the reasons he stated for vetoing we’re actually all addressed in the legislation. He did have a interesting mix of groups opposing.
In the end, except for money and stress, it didn’t matter. I was able to get what I needed to protect my relationship with my kids. The law did have a requirement that if 50/50 was not granted a reason had to be given and the ruling was appealable. I’d at least know why I’m a 49% parent. Maybe there’s something I should work on a little bit.
One other thing to recommend is a right of first refusal clause. Basically, if the kids are not going to be in the care of the parent with parenting time, the other parent has priority over other care solutions. In my case babysitters, step parents, relatives, after school programs, leaving the kids alone, etc. it took some pushing to get her to cooperate, but it’s a great way to get more time with the kids. When my office allowed working from home, I was able to have the kids after school on those days.
I guess I fall into the category of doesn’t think the courts are fair to dads and settled and is still p/o’d about it. My attorney said the laws were gender neutral (I read them, they are – ish) and the judge would award equal parenting time I was requesting if we both agreed to it. Apparently that’s a big change from the past? We got to mediation, and the mediator who supposedly is there to tell us what the judge would do pushed for me to settle for less than 50/50, but when my wife wouldn’t budge on anything we disagreed about, we ended the session. If I was going to be a two weekend a month dad, I would at least end up there after fighting for my kids.
And then reality set in. Every 50/50 decision that was made by the judge favored my wife. We had agreed to 50/50 legal custody and neither of us was claiming that there was anything wrong with the other, but the judge gave temp possession of the house and and temp support that was significantly over what child support would be. My attorney said relax, he didn’t set a visitation schedule and we were equals, so it was 50/50. I move out, try to proceed with 50/50, my wife refuses, back to court and I end up with a temp order giving me the states standard minimum visitation. My attorney says to relax, the rulings are temporary, and the situation can’t be held against me for the final ruling. And then my wife puts on the brakes, slowing everything down. I’m bleeding money. She gets an interim award for attorneys fees. She’s spending 3x what I am. It cleans out our savings account which wasn’t much. Again, no evidence that the award is fair, it supposedly will eventually come out in the wash, but the effect was putting me at significant disadvantage. A couple more losses and I came to the conclusion that I was going to lose, so I settled. Before the heavy stuff for custody fight started she offered me 60/40 and I took it. I had zero faith that I would be able to do any better. The mediator had told me at the beginning, I just had to accept it. It was way better than the every other weekend I was living with and was fast becoming the defacto plan. I was certain that someone would say “it’s going well now and the kids have adjusted” and temp would become permanent.
Greg, how can a 50/50 decision favor your wife. If it’s 50/50 it’s equal between the two of you. I’m not understanding what you mean by that. Did you fight her gaining temporary possession of the home and spousal support? Or did you take her back to court for parental interference in your custody time? A judge doesn’t overturn a 50/50 decision unless a litigant proves they are not worthy of that decision.You did something to mightily piss that judge off and cause him/her to reconsider the original 50/50 decisions.
JD,
When I settled for less time than I wanted or thought was fair or best for our kids, my attorney suggested a similar clause. It’s a pain to enforce when she leaves them with family because she claims its a visit, not day care, but works well for regular day care and baby sitters
Hi Sydney I assume your question was for me. Sorry if I wasn’t clear regarding a 50/50 question. I meant a coin toss or a jump ball, where theoretically we each had a 50/50 chance. These decisions were made on a temp basis, like awarding my wife temp possession of the house. There was no evidence presented, that would come later. Same for the other temp decisions. If things were actually equal, you’d think I would have won one of them, but I didn’t. With me at a disadvantage, she then started stalling and dragging things out hoping to turn temp into permanent.
Chris, we have community property states (split 50/50) and equal distribution states (equal split). Here is the issue, there is no such thing as “equal” when it comes to divorce, I don’t care which state you live in. Anyone who goes into divorce expecting a 50/50 chance is going to walk away from divorce disappointed. That is regardless of your gender. My divorce ended with my ex walking away with 70 percent, me having to find a new home to live in and him paying very little in child support. Women get screwed over just like men do. Yeah, if things were actually equal my children would have lived a hell of a lot different lifestyle after my ex got the divorce he filed for.
Hi Sydney. Same here regarding marital assets. Splitting things is not equal, it’s equitable and when it came to dividing property and 401K, it essentially was for us. I really didn’t care about stuff too much. I was trying to end our dead marriage (she cheated on me and we could never recover from it) and protect my relationship with my kids.
But I’m not talking about equitable distribution. I’m talking about the temporary decisions that are made by the judge. For example, we are both in the house, both want the house and want the other to move out. There’s no evidence presented regarding which of us should get it, just a temporary order favoring my wife. We still had to litigate who got the house and supposedly, there was no mark against me when considering it, it was just temporary. If we were equals, with no gender bias or any favoritism mom vs dad, it should have been a coin toss. Both of use having an equal chance to win. I lost. OK, that should happen 50% of the time, right. Then we disagreed about the parenting schedule. She wanted me to have every other weekend and I wanted equal time (alternating week, but I would have tried any plan). It’s not the custody trial yet, just a temp ruling to handle today’s crisis. Nobody is claiming the other is an unfit parent, we just disagree on the plan. Toss the coin, and… I lose again. It’s a temp decisions, so it’s not supposed to affect my standing in the actual custody fight, but that’s hard to believe. And so it went with all of the temp decisions. All coin tosses, and I lost all of them. So we head on to fight, but I’m now at a significant disadvantage and I’m essentially paying her to fight me. So when people say that dads have an equal chance of getting custody, my experience was different. the laws are gender neutral, but in actual practice (or at least under the guidance of her legal team), she had a clear advantage. YMMV**
**Your Milage May Varry
Your article is so far off the mark it hurts your readers. Two points. 1. “But in practice, more than three-quarters of custodial single parents are mothers. Research shows that while this can be in the best interest of children and parents, it isn’t always. In fact, gender bias in the family courts system is often failing families.” (cited Parents.com https://www.parents.com/parenting/divorce/shared-custody-could-be-the-custody-change-all-co-parents-need/) and more importantly 2. Most Men’s Rights Movements are not trying to take away women’s rights, they are trying to balance the family courts, in direct contradiction to what you say in your article. And the fight is going on in most states in the US, opposite to what your article claims.
How is your article so misguided to state that most states favor 50/50 parenting? It’s simply NOT TRUE.
The truth is states are incentivised to assign child support in all cases. Then the AG’s office receives federal funding to support the “collections divisions” of their offices. In my state, Texas, over 75% of the budget is for child support enforcement. It’s no wonder the lawyers don’t want to give up the imbalanced system, it makes them money as the represent moms and dads trying to come to an agreement. It’s no wonder the state governments don’t want to make 50/50 shared parenting the norm, they would lose funding.