If you’re reading this, it’s probably because an important part of your life ended badly. You’re divorced, or worse, going through a divorce. Nothing in this article is intended to provide legal advice or predict the future.
Usually divorce involves her asking you to leave the house you helped pay for, abandoning most of your possessions, as well as the kids. Very likely, she would also like you to send her 150% of your current income and never see the children again. This is what many women consider a “fair” divorce. It is unfortunate, but too often true.
In many states, despite the laws, custody has traditionally defaulted to the mother. This began with the “tender years doctrine.” This theory was developed in the 19th century. It states that children under the age of four are better off with their mother, children in general are better off with their mothers.
In most of Europe and the United States, the pendulum is swinging toward joint custody – both parents having equal input in raising the child. There is, however, primary residential responsibility – and in 80% of cases, this is awarded to the mother.
Attorneys cannot promise anything. What they will most often do is state how they won other cases in the past to give you hope (and extract money). If you ask them what your chances are, attorneys can’t promise an outcome or tell you what “chance” you have. Your chances of gaining custody depend on your behavior and the behavior of your ex – two factors that in most divorces are almost completely unpredictable.
Most mothers will fight for custody, and for many fathers it is an uphill battle at best.
Should you ask for primary residential custody?
This is an incredibly personal decision that should be based on one thing alone: What is best for the child(ren)?
Here are the questions you need to ask yourself:
1. Can you place your children first? Is your child more important to you than your career, hobbies and everything else?
2. Do you have the time (and energy) to care for children after a long day of work?
3. Will you honestly be able to support and encourage a relationship between your child and the woman you may now despise?
4. Are you ready to assume what is considered by “modern” America to be a non-traditional role for a man?
5. Have you thought about how this will affect your children?
6. Do you have anyone to help you with this enormous responsibility (parents, siblings)?
If you feel in your heart that you can commit yourself to placing your children first in your life, and do some of the most difficult things you have ever imagined doing, then you are probably ready to be your child’s primary caregiver.
If you are contemplating this, then there are things you will need to be aware of with regard to the Courts. They have certain criteria they consider before awarding custody. In most states, these include things like:
A) The child’s age and gender – Often (as in my case) a father has a good chance of obtaining custody of their son. Right or wrong, Courts may consider the future needs of the child and feel that a father may be better able (in some cases) to provide for the future needs of a boy.
B) The child’s physical health – If the child has special medical needs, the Court will consider a number of factors and will focus very much on the parent’s ability to meet these needs. Often, a self-employed father with a flexible schedule, or a father with substantially more medical training than the mother will be seen as better able to meet the special needs of a child.
C) The mental and physical health of both parents – If one parent has serious physical or mental problems, this will, if proved in Court, often affect custody. Parents with serious physical difficulties or impairments are much less likely to have custody awarded.
Physical difficulties are not the only thing the Courts consider. If the mother refuses to allow the father his visitation with the child, if the mother is speaking badly about the father to the child, the mother may have serious problems that prohibit her from being the child’s primary caregiver.
The act of “badmouthing” the other parent or turning the child against the other parent is called “parental alienation” by the Courts. Statistically, and very unfortunately, this type of twisted manipulation is usually carried out by mothers and directed at young children. Another statistical fun fact is that in a surprisingly large number of cases, it ends up backfiring on the parent who is trying to turn the child against their other parent.
What parents (mothers or fathers) who do this don’t seem to consider is that while young children will believe in Santa Claus, the Easter Bunny and everything that mommy or daddy says – that child will also grow up, remember everything that was done, and look on all of it with a very different set of often resentful, more mature eyes. Saying bad things about the other parent is never a good way to go. Don’t do it. All it does is upset and confuse the child. It is child abuse. Period.
D) The lifestyle of the parents – If one parent smokes and the other does not, this is also something Courts will consider. Also allegations of child abuse will be considered by the Courts. It is important that the Courts are made aware of any alienation by the other parent, as this can weigh heavily in the favor of the parent being alienated.
Other factors that may be examined are whether or not the parents consume alcohol and the type of career the parents are involved in.
E) The Emotional Connection Between Parent and Child – Many parents have an excellent link with their kids. They really connect with them. This is vital. I know of many cases where the father coaches the child’s football or soccer team, or is a Scout leader in the child’s troop. This sort of involvement will be considered quite heavily by the Court.
F) The Ability of the Parent to Direct and Guide the Child – This is another vital area. There are many cases where the child behaves in an out-of-control manner in one house, and is an angel at the other house. Very often, one parent simply cannot handle the child, or the child does not respond to that parent well. Parents and children often have serious personality conflicts, and these can intensify with the stress of divorce or separation.
G) The Parent’s Ability to Provide for the Child’s Needs – These needs will include the basics of food, clothing and shelter. They will also include medical care, education and the activities the child enjoys or desires. This factor traditionally weighed heavily in favor of the fathers, as the breadwinners or providers for the family. Unfortunately, it is a double-edged sword. Fathers who make excellent income are often viewed as too consumed with work to provide the time needed to raise a child.
H) The Established Living Patterns of the Child – The Courts will often try to keep good living patterns intact as much as possible. In the above case of the father as Scout leader or soccer coach, the Courts will often enter supplemental orders to ensure that these things continue for the benefit of the child. If the mother attempts to interfere with these establish patters out of spite, this may be grounds for the Court to re-consider her as a custodial parent. Other factors that the Court will consider is the child’s current school, education and schedule. Courts will look closely at who does what. In some cases I have seen, the father had the child for football practice, Scouts and other activities, tutored the child regularly and went camping at least one weekend a month. Because of the father’s participation in the child’s life, and the mother’s reluctance to have this participation continue, the father was awarded custody, which brings us to the next factor…
I) The Ability of the Custodial Parent to Foster a Relationship Between the Child and the Other Parent – This is a huge factor, and one that has been brought up many times successfully by many fathers. It is often viewed as the main reason mothers lose custody of their children as it can be viewed as a “substantial change in circumstances.” Courts don’t just change things for the heck of it. In fact, even if things aren’t perfect, the Courts usually prefer the “devil they know” rather than the “devil they don’t know.”
At some point though, the Courts will realize what has been ordered just isn’t working and it’s detrimental to the child.
Custodial parents who refuse to allow Court-ordered visitation are, in many states, sentenced to community service. It is very often grounds to go to Court to obtain make-up visitation and even a change of custody.
Despite the foolish bias too many judges have against custodial fathers, no judge tolerates contempt of existing orders. Repeated Motions for Contempt over a period of time will often be very dimly viewed by Courts.
Keep a journal of what happens if you don’t have custody now. Ask your attorney about filing Motions for Contempt. Keep fighting for visitation. Do this no matter what. Your child should always know you did everything you could, win or lose, to remain a part of their life.
If you have visitation (or time sharing as it is called in some states), it is vital to make sure you spend this time with your kid(s). If you are not seeing your children, the Courts will ensure that you do, and will often punish the other parent for refusing to allow this to happen.
J) The Preference of the Child – Past a certain age, the preference of the child will be considered in Court. That age in many states, is as young as 12.
As surprising as this may sound, children often prefer clear boundaries to their behavior and consistent discipline.
Courts will absolutely take allegations of abuse form children into consideration. They will NOT however, look kindly upon the “cool” parent who lets the kids stay out until 2am on a school night and “do whatever they want.” This sort of thing will inevitably backfire.
Increasing Your Chances of Custody
Here are some things you can do to increase your chances of gaining custody and remaining in your child’s life:
1) Stay involved in your child’s life no matter what. There are many things your child enjoys doing. Be there with them. Participate. Watch. No matter what you must remain involved. I have heard many mothers object to a father coming to watch their daughter’s gymnastics class or their son’s soccer practice on a night that isn’t “theirs.” Unless there is a Court order, her objections should be noted and ignored.
If continued objections occur, this should be brought to the judge’s attention, with witnesses subpoenaed if possible. Unless you showed up drunk or got into a fight, this will result in admonishment for the mother and a Court order allowing you access. You cannot lose on this as long as you remain calm.
2) Remain in contact with your child no matter what. Stay in touch. If that means texting (a preferred method of contact between older children and the rest of the world), then do that. There are many ways to maintain contact. Older kids just don’t talk on the phone the way they used to. Facebook chats and texting seem to work well. Do whatever it takes. Ask them how they are doing, and be prepared for brief answers from time to time.
3) DO NOT badmouth the other parent EVER. Just don’t do it. Do not. No matter what. Even if she’s doing it to you (and she may be doing it a lot). The most you should say is (VERY calmly), “I would consider it disrespectful to your mother and to you to speak about her that way to you. I’m sorry you have to hear her speak that way about me.”
I remember one of my son’s friends in near shock when he found out certain facts about his mother. She spent years saying terrible things about this child’s father. When the child asked his dad why he never said anything about these terrible facts, the father looked at the kid and said, “first, that’s not something I would ever do, and second, it’s none of your business.” The father refused to discuss the details of this discovery, gaining a near infinite amount of respect from his son.
4) Remember that your child is not an adult – That means that you don’t discuss adult things with the child. If the child asks you if what mom said about you is true or not, this leads to an adult conversation that is best never started. You might say that “It’s not appropriate to discuss adult things with children. I’m sorry you have to hear any of that.”
5) Realize that certain things are going to suck for awhile but that doing the right thing will always be best long term – When the ex is telling your seven year old what a bad person you are and the kid is swallowing it all hook, line and sinker, your life sucks. Let that be on her. She is the one who is going to have to live with that later on.
I heard my son, at the age of 13, having an alarming discussion one Friday night. They were all talking about crappy things their parents (both moms and dads) said about the other parent when they were younger. The kids were EXTREMELY unkind to their parents. They remembered it all, every word, and many of them were surprisingly resentful of things that happend years earlier. It was awful. The two times I yelled at her in front of him were mentioned in very unkind terms. Long term, your kids will appreciate your strength, the fact that you were always there for them, and the fact that you tried to do the right thing.
I know of a nine year-old who routinely punches his custodial mother. I’ve seen her in action. I can confidently say she is a truly spiteful individual. She has done everything possible to turn her son against the father he clearly loves, and this kid is taking it out on her every day. Again. DO NOT badmouth the other parent.
I know far too many parents whose children despise them. Yes, they won custody. Yes, they cost the other parent perhaps tens of thousands of dollars in legal fees. They degraded the other parent for years and may have temporarily made the other parent out to be a rather convincing villain. Then, at some point, they are forced to live with a child who hates them for what they have done.
6) Don’t Lose Your Cool – Try not to talk with her when you’re angry. If that doesn’t seem to work, resort to e-mails, carefully worded. Remember that e-mails and voicemails are permanent and can be used against you in Court. Choose your words carefully. Wait a day before sending an e-mail so that you can calm down and edit the content.
7) Continue to be a Parent – Whether or not you have custody, you are still a parent. Your house has rules and it is your job to provide the structure you deem best. Children will often engage in emotional blackmail or tell you how much “cooler” mom is. That’s nice, but it has nothing to do with your household.
8) Once again – Keep a Journal – If you are trying to gain custody, keep a journal of what’s going on. Especially if she’s doing things she shouldn’t do. Write it all down, as well as your efforts to get it corrected. If these efforts don’t work, then go to Court. If you keep coming back with the same complaint, something WILL change.
Realize it’s not over until the child is 18. Custody can change at any time, and often does around adolescence.