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.