Stay At Home Dad: What Are My Rights?

By Jill A. Duffy

Attorney, Cordell & Cordell

The new era of stay-at-home fatherhood is putting men in some uncharted territory because traditionally women were the ones to stay at home and raise children. Many stay-at-home dads have questions about their rights because of this.

When a woman stays at home during the marriage to take care of the kids, it is customary for the children to remain primarily with her after the divorce, and for her to get child support and spousal support to continue living the lifestyle she was accustomed to. Is it any different for a stay-at-home dad?

The short answer: It shouldn’t be.

In all states, statutes regarding child custody, child support and spousal support are drafted in a gender-neutral manner. Long gone are the days of the “Tender Years” doctrine, which presumed that children under age 13 should be with their mother.

Unfortunately, the “Tender Years” mindset has not been completely banished in our country. Although there are some guidelines with regard to spousal support and child custody, in most parts of the country judges are given discretion to make rulings on these issues based on the facts and circumstances that are in front of them.

Child custody is normally determined based on what is in the child’s best interest. Many states have statutory lists of factors they will consider when awarding custody to one parent or the other. You should become familiar with the factors in your state and which ones may be critical in your case.

Child support is normally more cut and dry than an award of child custody. Most states use a formula for child support based on the number of overnights the child spends with each parent, the parent’s income, and the child’s age.

Spousal support is not required, and there are not standard formulas for determining the amount or length of time it is awarded. Of all areas of divorce, spousal support is the most negotiable. Most states have statutes that give judges factors to consider if the support decision is left to the court. Most spousal support decisions are negotiated between the parties based on the length of the marriage, differences in income, the property settlement that is made and who gets custody of the children.

Here are a few tips to start your divorce on the path to preserving your right to parent your children:

  • Be the first to file. The person who files has an immediate advantage. They get the first word with the judge, and can set the tone for how the case will proceed.
  • If your jurisdiction allows it, enter ex parte (unilateral) orders that reflect your current custody situation. Ex parte orders allow you to have the judge enter an order establishing custody for the pendency of the divorce. Although the order can be modified later, the ex parte order gives you the first say in the custody battle.
  • Make sure you can document what the established custodial environment currently is. Gather any proof you may have of what you do on a daily basis as the children’s primary caregiver and proof of the children’s relationship with you.
  • Have witnesses ready. Have witnesses that can testify about your relationship with your children. These witnesses need to be able to say more than “he’s a great dad.” You will want to have people who have seen you and your children interact in specific instances and can explain how that interaction took plae and your children’s reliance on you as a parent.
  • Do not deny parenting time with your spouse. All judges frown upon one parent trying to keep the children from the other parent. Even if you are the primary caregiver, it is important that your children maintain a relationship with their mother.
  • Be prepared to negotiate. Most child custody and spousal support decisions are a result of negotiations between the parents and their attorneys. It is okay to hold out for what you believe is best for your family, just make sure your attorney is fully informed of what you are trying to accomplish and he/she is willing to fight for it.
  • Don’t bad mouth your spouse especially in front of your children. This hurts your children more than your spouse, and judges will not tolerate this type of behavior.

 

Jill A. Duffy is an Associate Attorney in the Troy, Mich., office of Cordell & Cordell. She is licensed to practice in the state of Michigan. Ms. Duffy received her BA in Psychology and Spanish and graduated Magna Cum Laude from Oakland University. She received her Juris Doctor from Michigan State University College of Law and graduated Magna Cum Laude. 

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10 Comments on "Stay At Home Dad: What Are My Rights?"

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Ramon Suarez
10 months 22 days ago
I was working in general warehouse and had lost my job so the very next day I started looking for work. My other asked me to stay home and take care of our 2 year old daughter but I told her I wanted to get back to work as soon as possible and she told me to stay home so she can further her career and sense I could not find a job that week I agreed but was only agreeing until I found a job! I was the only one at the time to own a car so I… Read more »
Fank
1 year 3 months ago
For what it is worth, these stories are similar. Just 5 minutes ago a man told me his wife picked up and left. Just like that. There is usually a man attached to this scenario. Watch for it. The second place villain is a girlfriend telling her she can so better without you. Seldom happens. Problem is the children suffer terribly. The women don’t put the children first. Men, above ALL, continue to take care of your babies. The wife will never understand the impact this has on children. Speak with other men going through this. There is a common… Read more »
Jay
1 month 10 days ago

I’ve been a SAHD for 11 yrs and now i being bashed consistently by my wife’s actions. She’s breaking the commissioners ruling, that is yet vaige, but getting away with it. The G.A.L when I spoke with her spoke of my wife as the Saint and I’m the one being the issue. Yet my understanding was a G.A.L was supposed to be neutral.

Brian Harney
1 year 4 months ago

we have been married 7 years, both have taken the rolls as stay at home parents at one point, she now works a full time job 12hrs a day, i have the responiblity of school, sports and appointments. she has now met somone else and wants a divorce. i just moved to this state where i ha e no friends or family for support, all i have is my childern, she is trying to force me out of the house, she has no time for our childern, 10am to 10pm she works. im not sure what my rights are

Steve Busse
2 months 23 days ago

Dude I’m with you I hope things work out for you. If you ever need a brother to talk to 9255801483

Ken Lucas
1 year 6 months ago

I was force into the stay home father position because the mother has tenure at her company and she didn’t have any parenting skills. After ten years in this position, what I thought would happen, has happen. She has found someone else. Now she wants me out and has cut me off from everything. No Money, No Jobs, No Sex, No car and soon, no place to call home. Any help for me out there?

Gab San
2 years 14 days ago
stress stay at home dadCalifornia, I have a verbally abusive wife that abuses my 4 yr old and me. She is always belittling me everywhere. I have many hours of voice recording and making her acknowledge she is being recorded which she doesn’t care. I do have a felon record due to her side of the family that are drug dealers and till this day they still are. I do have a hard time seeking night jobs because it doesn’t last long or the night is killing because I don’t get enough of sleep. My wife does try to brainwash… Read more »
Andy
3 months 27 days ago

I am going through the exact same thing right now so I wish I could give you advice but I can only wish you the best I also have charges and my 3yr old daughter is my life! So I hope everything works out for you and I know it’s not advice but it is nice to know there are other good dad’s out there going through the same situations lol you know what I meant! Just wanted to say I understand! Hang in there and best of luck to you!

help this dad
4 years 1 month ago

stay at home dad
I have been a stay at home dad for 9 years raising our three children so my wife could work at her high paying job. My wife filed a PFD on Monday. As a result, I am not able to see my kids or go near my house. My wife also hijacked my e-mail account. We are scheduled to see the judge on Thursday. HELP!

Cliff Kirkland
4 years 10 months ago

Stay at home dad
thank you for your tips, I need all the help I can get

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