Fathers’ Rights in Custody Matters

Protecting a Father’s Relationship with Minor Children

When a marriage ends in divorce, parents must establish an arrangement for the custody and care of any minor children. The parties may work out an agreement on their own, or they may need the court to intervene and set the terms of custody and visitation. Until the latter part of the 20th century, mothers were presumed more fit to tend to the needs of minor children, which meant that a child’s mother was almost always granted physical custody. Over the past 50 years, though, courts have increasingly recognized equal rights for divorced fathers, allowing them greater involvement in the growth and development of their children.

What Are Fathers’ Rights?

In recent decades, legislative and judicial bodies across the United States have increasingly acknowledged the importance of both parents being actively involved in the lives of their children and the decisions that affect them. Accordingly, the law now recognizes a broad array of rights for fathers, including:

• The right to reasonable parenting time
• The right to be consulted before any adoption takes place
• The right to take time off from work to care for or raise a child

How Does the Court Determine Who Gets Custody of a Child in Divorce?

If the parents are unable to agree on the terms of custody, the court will hold hearings and gather evidence from both parties and then issue a ruling establishing custody and visitation rights. When making decisions about custody, a court generally gives priority to the “best interests of the child.” Factors involved in determining what’s best for a minor child include:

• Age and gender of the child
• Nature of the relationship between the parents and children during the marriage
• Mental and physical well-being of the parents and children
• Extent to which each parent can provide for the financial needs of the child, ensuring shelter, food, clothing, and medical care
• Impact of a change of residence or community on the child’s education, social network, and extracurricular and religious life
• Whether there are lifestyle choices by either parent, such as substance abuse or criminal activity, that put the child in harm’s way
• Extent to which either parent has engaged in domestic violence or abuse
• In some states, the preference of the child, if the child has reached a certain age (usually somewhere between 12 and 16)

What Are the Different Types of Child Custody?

There are two distinct types of custody with respect to minor children:

• Physical custody—This refers to where the child resides and considers to be home. For most of the history of divorce in the United States, courts preferred to grant sole physical custody to one parent, allowing the other parent reasonable visitation. Over the past half century, however, courts have gradually started to allow shared custody, where the child actually lives with each parent for specified periods of time.
• Legal custody—This addresses the rights of each parent to participate in decision-making regarding important matters in the child’s life and upbringing, such as education, discipline, medical care, extracurricular activities, and religious training. The preference in the courts is to grant joint legal custody.

What Custodial Rights Do Fathers Have?

A father’s custodial rights are equal to those of the mother. A father can ask the court for sole or joint physical custody and/or legal custody. If a father is granted any degree of physical custody, the father has the right, when the minor is with him, to guide and direct behavior, to establish rules, and to prevent the mother from interfering with his parental duties. In addition, a father who receives a grant of sole or primary physical custody has a right to receive child support from the mother.

How Can a Father Get Joint Physical Custody of a Minor Child?

The custody rights of a father are based primarily on what the court determines will be in the child’s best interests. The court will grant joint physical custody when doing so advances the child’s best interests.

When Can a Father Get Full Physical Custody of His Child?

There are many situations where a court may find grounds to grant a father full custody:

• Where there is evidence that the mother has abandoned the child or lacks the parenting skills to care for and raise the child
• Where there is evidence that the mother has been physically, mentally, or emotionally abusive to the child or engaged in domestic violence or abuse toward any member of the household
• Where the mother has a history of substance abuse and is not in recovery
• Where there is evidence that the mother has engaged in illegal activity in the home, putting the child in harm’s way
• Where the court deems the mother’s lifestyle inappropriate because of substance abuse, sexual conduct, or other matters

Though it doesn’t happen often, a father can ask the mother to grant sole physical custody. Even if she does, though, the court will review the agreement to ensure there is no coercion, undue influence, or misrepresentation. A father may ask for sole custody in the original divorce proceeding or petition the court, after a final divorce decree, for a modification of custody. The court will then hold a hearing, take evidence, and make a ruling.

What Visitation Rights Does a Father Have?

As a general rule, a noncustodial father has a right to reasonable visitation. The definition of “reasonable” varies from state to state, but courts generally encourage regularly scheduled visitation, such as:

• Every other weekend
• Alternating holidays
• One evening per week, based on the age and proximity of the parents to each other
• Some part of the summer vacation for children who are in school

In some instances, where the court finds that the father poses a risk of danger to the children, visitation may be denied or allowed only with supervision.