Do Dad’s Have the Same Rights as Mom’s in Divorce?

Yes, dad’s have the same rights as mom’s in a divorce! We hear so much about moms receiving primary custody of their children after a divorce, leading many people to assume that a mother’s and a father’s rights to custody differ. Under current laws, mom’s and dad’s actually have the same rights and fathers can win custody if they prepare solid cases. Father’s rights are growing fast in every single state across America. Fathers who want to play active roles in child rearing should fight for this. Expert father’s rights attorneys know how to get dads custody of their kids. Specialized team of father’s rights lawyers provide free consultations – reach out and get help.

Gender Roles and Father’s Rights

In the past, courts followed the tender years doctrine, which advocated giving custody to the mother because the child required the love and care of the female parent. Perspectives about gender roles have since shifted and the law now recognizes the important role of fathers in raising a child. Courts now follow a gender-neutral standard of what is in the best interests of the child.

What this means is that a court no longer, by law, can base custody or allocation of parental responsibility (decision making for the child) on whether someone is a mom or a dad. Our society still has a preference towards women/mothers, so even though the laws have changed, a father has to prepare an even better case than a mother would to overcome this preference. The best interests of the child is what a family law judge will base her or his decision on when it comes to custody and parenting time.

The Best Interests of the Child – What Is It?

The basic standard that all state courts follow when determining what each parent should have for custody and parenting time is known as “the best interests of the child.” This involves a number of factors that vary from state to state, but key things are the same in each state. The court reviews the relevant factors and bases its decision on what will be best for the overall well-being of the child.

In some cases, they decide in favor of the mother, but this decision is no longer a “given.” In many cases, fathers are awarded joint custody (shared allocation of parental responsibilities), sharing child rearing duties with mothers. This allows children to grow up under the influence of both parents, which many psychologists say is the healthiest approach. Dad’s have the same rights as mom’s during divorce, because they are as capable as raising a child as any mother is!

Primary Factors for the “Best Interests”

Although each state has it’s own list of factors to use, virtually every state focuses on a few big factors in making the determination of what is best for the child. When involved in a Father’s Rights case, men need to be extra-vigilant about making sure they can prove the positive things in the list below. Dad’s have the same rights as mom’s, but a father must prove it with overwhelming evidence.

The main factors for determining the best interests of the child in a father’s rights custody case include the following:

• The relationship that exists between child and either parent

  • Is there a positive relationship between the child and the parent is one of the questions here – but it’s not as simple as how do the two get along. This factor deals with the interrelationship between child and parent by looking at which parent has been the primary caretaker of the child. It might be both, or maybe 1-parent handles most of the day-to-day child rearing responsibilities.

• Living arrangement of the child (house, food, etc.)

  • Whether someone has a 3,000 square foot home or a two-bed apartment isn’t necessarily a huge factor – but a nicer home is always a good thing. The main thing here is that the child has his/her own bedroom (siblings might have bunk beds, that is usually not an issue), healthy food in the fridge and pantry, clothing, furniture, and a clean and orderly house.

• The physical and mental health of the child

  • If the child has any type of mental or physical health needs that require the care that only 1-parent can provide or only 1-parent has the ability to provide.

• The physical and mental health of the parent

  • Some states specifically do not let a court discriminate based on physical disability of a parent. However, the court will look at the health – physical and mental (in some instances) of each parent to determine if there is a danger to the child. This could be schizophrenia, a parents suicide attempt, or a parent that is severely disabled and unable to provide care for their child.

• The stability of the child’s home environment

  • Has a parent moved 5-times in the past 6-years? That is the opposite of stability. Keep an orderly home in a neighborhood that is safe and that you intend to stay in for a long time. Judge’s don’t like when a parent constantly moves, changes the child’s school, or moves in and out with multiple significant others. Stability is very important!

• The child’s expressed preference

  • Most judges don’t care too much what a child wants – even if that child is 16 or 17 years old. However, if a child has a good reason and expresses those reasons why he or she wants to be with one parent over the other, this might be a tiebreaker to a judge if all other things are equal. But this depends on the age and maturity of the child to even be a factor at all.

• The ability or willingness to cooperate with the other parent to attempt to co-parent

  • Showing to the court – by actions, not just words – that a parent is willing to foster a good relationship between the child and the other parent as well as trying to work together and cooperate on child-rearing is essential. That is the definition of co-parenting. If a parent proves to the court they don’t want to try to cooperate with the other parent, the judge will assume that is because the parent doesn’t care enough about their child to put adult disagreements aside.

• Whether domestic violence has been or is an issue in the house

  • This one can make or break a case fairly easily. If a parent has abused or has a history of abusing the other parent or child, that parent likely has bigger issues in court than custody – like an order of protection. And if abuse from one parent to the other takes place in front of the child, most judges will severely limit the abusive parents time – or may not give them time outside of a supervised setting at all.

Custody Orders

The court order regarding custody is sometimes called the visitation schedule or parenting plan. In other states, it might be called an Allocation Judgment. This document establishes the rights and responsibilities of the parents. The adults must work out a mutually agreeable visitation schedule, taking into account factors like who has access to medical and school records and who can provide transportation to and attend extracurricular and school activities. If changes must be made to the visitation schedule, parents should try to work this out themselves instead of heading straight to court. And if the parents can’t come to an agreement, the court will decide.

A parenting plan might allocate more parenting time to one parent over the other, but it might also give the parents joint decision-making ability. For example: a judge might say that both mom and dad have to discuss and agree on educational, medical, and extracurricular activities before making a decision. But that same parenting plan might say that dad gets less parenting time than mom.

Next Steps

Father’s rights cases are some of the most difficult cases to handle in court. The preference that our society has to award primary custody to mother’s still exists even though the laws have changed. For that reason, dad’s need to go above and beyond what a mother does to win primary custody or even equal parenting time. Father’s rights lawyers know how important a dad is in their child’s life and they will use years of research to prove it to the court. But, dad’s need to check off as many boxes as possible to win.

Coach your child’s little league team. Show up at PTA meetings at your child’s school. Go to the recital or performance. Make doctors appointments and take your child to them. Help your child study, exercise with him/her, and know your child’s teachers and coaches. Dad’s need to fight for their father’s rights to be protected in court – but it begins by doing the right thing – get started now, and then get a free family law consultation and fight for your family. Dad’s have the same rights as mom’s do – don’t lose yours!