Question:
I have three children, 5 years old, 3 years old, and 8 months. I am fighting for the custody. My job is flexible, I have to be at work only for two days a week. The mother does not work though. I consulted many lawyers, and all of them indicate that “having the custody will be very difficult simply because I am the man! The courts believe that it is in the best interest that the custody be with the mother.” Is that true? and if I really care about my children, what are the best strategies that my lawyer should use to win me the custody?
Answer:
All things being equal (if that is possible), there is a general preference by society, and therefore judges, that a tie goes to the mother in a custody issue. This preference is more prevalent when the child is an infant or toddler and, while still present, less persuasive the older the child. In that sense, the father always has a more difficult case for custody. The difficulty may be getting the court to even consider the option of paternal custody or it may be the need for a major evidentiary trial on all the issues and facets of each party’s parenting skills and abilities.
For purposes of your question, let’s assume you and the mother are equally capable (physically and philosophically) of caring for your children. You have identified one of the major considerations in such cases – who has what time available to care for the children. The parent who works nights and not available to care for the children has a very difficult case. When both parents work weekdays, the schedule issue may come down to who can be there to take the children to school/daycare and at what time. A schedule that would require the children to be up too early in order for the parent to get to work is usually not considered best for the children. The father may need to make adjustments to his work schedule (or point out the current flexibility) to show that you have a commitment to your children’s best interests. Conversely, the father may need to assert the mother’s potential work schedules (assuming she will now have to work to support herself) as placing her in the lesser availability position.
Assuming you have the appropriate availability to care for your children, another issue will be the relative parenting “track records” of the parties. The mother will usually assert that, while the father may be capable, she has done all the child care and that the father has been a “non-player” during the marriage, such that representations that the father will now step up to parenting should be disregarded. If the father has not played a significant role in the daily activities of the children, he may need to provide evidence on what role he has played and the circumstances that precluded a greater role, such as work commitment decisions agreed upon by the mother or the mother’s rejection of attempts to assume more of a role.
Additional considerations may be the home environments, available schools, and financial resources of the parents as to who can better care for the children. While the mother’s financial deficiencies may be offset by child support, her lack of financial responsibility may be used to show that the support will not result in a better care regardless. Her chosen neighborhood, other adults in her home, the schools the children will attend if residing with her may all have an impact on the final resolution of custody.
While it may be an uphill fight, the initial custody decision is usually the standard for later custody reviews and full exploration of custody in the initial case is often necessary and desirable, regardless of the outcome, to set the stage for future proceedings.
