Last Updated: April 11, 2022
Many people would like to believe the custody laws in the United States are gender neutral, meaning no preferential treatment is given to either parent based on sex. While many early custody cases in the United States had seen a preference for giving mothers custody of young children – by using a legal principle known as the “tender years’ doctrine” – the laws in many states have since been rewritten to be more gender-neutral and to clearly indicate that the best interests of the child are what is truly important.
While this may seem like a positive move on behalf of state governments, and it is, the reality is that the majority of judges dealing with child custody cases still prefer to award primary custody of children to a primary caregiver, which may be a “stay-at-home” parent. The majority of stay-at-home parents tends to be a child’s mother. While this is most often the case, there are a large percentage of parents that are stay at home dads – and the way these cases work is slightly different than for a mother.
Gender Neutral Child Custody Laws
In cases where a father has been an available, present, and competent parent, the “gender-neutral” rewriting of custody laws would suggest that the father should be awarded primary custody if joint custody is not an option. However, there is a question as to whether a lingering sense that mothers make better caregivers is causing more family court judges to award mothers primary custody – even if the dad is the primary caregiver. While many experts would agree to this statement, it is also important to note that this sense is not as strong as it was 20 to 30 years ago.
In addition to the incorrect notion that mothers make better caregivers than their male counterparts, there is also a cultural pressure that women feel to fight for their maternal rights and petition the court for primary custody even if they have not been their children’s primary caregiver. In many cases where a father is awarded primary custody, it is hard for a woman to explain to her family, friends, and acquaintances why her ex-partner was awarded custody of the child or children and she was not. This feeling alone can trigger aggressive court action on behalf of the mother (and it happens quite often)!
Child Custody for Stay-at-Home Dads
While child custody outcomes for stay-at-home fathers may seem bleak, they aren’t, and the tide is turning with how the laws are being rewritten and the way younger judges approach the issue of child custody. There are some things that fathers can do to help increase their chances of being awarded primary custody. Following some specific steps that every parent should follow is the key to making it clear that you, as dad, should remain the primary care giver for your child.
Remain Involved in Your Child’s Day-to-Day
As a stay-at-home-dad, the majority of the childrearing duties likely are done by the dad and might involve doctor’s appointments, driving to school and activities, and assisting with schoolwork for the kids. Keep a record of all of these things and continue to be the primary parent that handles these events. A record might consist of a daily schedule shared with your spouse (like a Google calendar) or messages or even bills (sign in sheets, for example). Make sure you keep proof of you being the primary parent.
Avoid Moving Out
Do not move out – even moving out and bringing your child can be an issue depending on the new living arrangements and circumstances. Speaking with a lawyer before doing this is essential. Moving out can cause issues, even if moving somewhere nearby, because it is a disruption in the child’s life. A new home, maybe a farther commute to school, loss of neighborhood friends, etc., are all things that judges don’t like to see if it can be avoided. One of the biggest factors a judge considers when determining what is in the child’s best interests is stability. Moving creates immediate instability.
Do Not Get Kicked Out
Stay-at-home dads have the ability to be tossed out of their house much easier than a mother in certain circumstances. Picture this: both parents get into an argument, it escalates and both people are yelling at each other – nothing physical happens, but it is an ugly fight. The mom knows that she is already fighting an uphill battle because dad is the primary caregiver. So, how does she crush that fast? By calling the police. They show up, she claims dad threatened her, or worse, and the police make dad leave the house. A court date for an emergency order of protection gets set, and then it gets continued, and then it gets continued again. Now, 2-mnths have gone bay – and the kids have been living primarily with mom, not dad. The ‘primary caregiver’ status of being a stay-at-home dad is suddenly erased – or at least, damaged. Always avoid any possibility that this could happen at all costs.
Make a plan. Speak to a father’s rights attorney and get things in motion the right way. Organize old and current calendars (showing activities and appointments you have been in charge of setting) and gather contact info of teachers, coaches, etc., that all have witnessed your parenting and who would provide a statement stating that they see you drop-off every day for school or that you are the assistant coach of a basketball team. Keep things as normal as possible for your child and do not allow yourself to be baited into an argument that damages your case. Most importantly, stay positive for you and your kids!