Fathers' Custody Rights During Divorce

father and son sitting on a floor on a computer

MaaHoo Studio/Stocksy

Before and during the divorce process, each parent has the same legal right to custody of a child. Mothers and fathers are on legal standing until one or the other gives up or is denied full custody rights.

The meaning of this is complicated if you don’t know your state’s child custody laws. Essentially, until you have signed a custody agreement or a judge has made a custody ruling, each parent has the same legal rights when it comes to where a child lives, who the child lives with, and anything regarding the child.

For some reason, many fathers are behaving in a way that is not in their best interest or the best interest of their children. Fathers may be giving up equal or shared custody because they believe there is a gender bias—that mothers always win custody. Or they may give up more custody because they’ve been taught that “children need their mother.”

You can't know if there is a true gender bias in the divorce court system if you don’t go to court and fight for equal time with your children. If you are a father who wishes to have equal parenting time with your children, you are doing yourself a grave injustice if you give up without a fight. To better your chances, hire an attorney who believes in your case—not one who thinks your custody battle is doomed. 

5 Things Fathers Should Think About if They Want Equal Parenting Time After Divorce

Document the times when you are not permitted to see your child(ren). Bring your notes to court, and then the system will hold her accountable for interfering in your parenting time. 

Hire an attorney or file a pro se petition with the court to establish equal parenting time with your children.

Do not listen to the negative stories. Nothing should dissuade you from attempting to gain equal parenting time or full custody. Just because one father was not able to obtain equal time or full custody of his children does not mean you won't. 

Straighten up your finances. The financial cost associated with a child custody battle should not be what keeps you from fighting for your kids. That said, your ability to provide for them will likely come up in court.

Do not compromise before mediation/court. There is no way to go back once an agreement is struck, so it is important to remain steadfast until both parties agree to a thorough compromise. 

Many fathers do not have a clear understanding of their legal divorce rights when children are involved. And in many cases, they will give up custody out of fear of losing in court due to what has become known as a "gender bias." Contrary to this belief, a mother does not have more legal rights over children than a father. Should the mother leave with the children, a father still has a right to equal parenting time or full custody of their children. He deserves visitation and to be consulted when issues with the kids arise, such as illness or school struggles.

If seeing your children is important to you, the prospect of a custody battle should not deter you. A father has as much right to raise and nurture his children as their mother, and even after a divorce, this does not change. 

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