What a Father Can Do to Get Custody During Divorce

The common belief is that the mother will retain full or at least partial custody of the child(ren) during a divorce. However, this is not true in some cases. Courts attempt to look at "the best interest of the child(ren)" when deciding who will have primary custody. If a mother is deemed unfit, a father can petition for partial or full custody.

Factors that are Considered

Courts look at certain factors when determining who should get custody. They include:

Who has been the primary caregiver
Any adverse effects by changing the status quo
Whether the change requires the child(ren) to re-locate to a new home and/or school
Whether the current standard of living will be changed
The continued access to extended family
What the child(ren) wants (depending on their age)
The child's age, physical and mental health
The parent's physical and mental health
In some cases, a parent's lifestyle and/or morality

Usually, if a mother is the primary caregiver and has successfully raised the children up to the point of the divorce, the courts will not take full custody from her. At minimum, the courts might consider partial custody if it is in the best interest of the child.

Types of Custody

Joint Custody

In a joint custody, both parents share equal physical custody. They can agree on time allocation when the child will reside with each parent. If the parents live in different states, the alloted time may be extended to take into consideration school and holiday schedules. This will retain stability in the child's life.

Joint Custody with a Primary Parent

In this type of custody one parent is the primary parent and the other is the secondary parent. The secondary parent will provide compensation to the primary for the extra support, and will have less time with the child.

Sole Custody

This type of custody provides full physical custody to one parent, but the non-custodial parent is still obligated to pay child support. The non-custodial parent's time with the child is less but he or she retains visitation rights. This type of custody is usually ordered where one of the parents has been proven unfit.

Gaining custody

If a father seeks full custody, the divorce may become contentious if the mother protests. In this situation, a father must be prepared to show that giving him custody is in the best interest of the child. Showing "best interest" may vary by state, but the underlying basis is that a father has to be involved with his child's upbringing and not just provide financial support. Courts will look at whether he has invested (or is at least willing to invest) quality time with his child. Simple activities such as reading to the child or helping him or her with homework do matter. A father should know child's medical history and school activities to show that he is involved.

If the mother is unfit, a father must present evidence that the child will suffer if matrilineal custody continues. For example, if the mother's lifestyle puts the child at risk, the court will definitely take that fact in consideration. Courts have looked at even such instances as a parent's smoking when a child is an asthmatic to determine the best interest of the child.

Find a Lawyer

If you are a father seeking custody during a divorce, you may have a uphill battle. Courts base custody on the best interest of the child. The common belief is that the mother is the primary caregiver and courts are hesitant to remove custody from her. However, a father has a right to at least partial custody, or if the mother is unfit, full custody. Contact a lawyer to determine your rights in this case.

Thinking About Divorce?