In This Article
Having custody over your child means you can make legal decisions about where he or she lives, goes to school, even prays. It also allows you (in fact, requires you) to house your child, provide for him or her, and take care of every need, both physically and mentally.
Child custody agreements usually come after a child is adopted or if the parents are undergoing a divorce or separation (if one parent passes away, this also triggers negotiations.) The courts are the institutions that make the decisions about who will get child custody.
If you are undergoing child custody proceedings you might already have questions about what rights you have, the different types of child custody, how often fathers win, and what you can do to makes sure you retain your rights. We reached out to family law attorney George Gilmer for answers to common questions related to child custody for fathers.
Meet the Expert
George Gilmer is an attorney in Brooklyn who specializes in family law.
What Custody Rights Do Fathers Have?
There is good news for fathers, said Gilmer: "Fathers have the same rights that mothers have." When making decisions regarding custody courts use what is called the best interest of the child standard. That means if the father is the parent best equipped to make decisions for the child and care for him and her, he will be awarded full custody.
Old fashioned notions that the best place for a child is with the mother are gone, said Gilmer. "Even if not awarded custody the father can expect to have reasonable parenting time with his child," he said. "The court believes that it is in the child’s best interest to spend time with both parents."
At the very least, fathers have equal access to the child's medical and school records. Fathers also have the right to help make big life decisions for the child (for example, where should he or she live and go to school) even if they don't have full custody.
What Are the Different Types of Child Custody?
There are four types of child custody: sole legal custody, joint legal custody, sole physical custody, and joint physical custody. Let's take one at a time.
Legal custody is the right to make big life decisions for a child. That can include everything from medical calls (does this child need surgery?) to education (should we send our kid to public or private school?) This type of custody also covers religious decisions (should we raise our child religiously or let him or her choose as an adult?)
Someone with sole legal custody means that he or she has the right to make all major decisions under these realms. "Joint legal custody means that a parent cannot make major major medical, educational, or religious decisions concerning the child unless the other parent agrees," said Gilmer.
Physical custody covers where the child will live. Which parent will house the child and provide for him or her? Who will be there for breakfast before school and for dinner in the evenings? "Sole physical custody means that the child shall reside with one parent primarily, meaning far more time than the other parent," said Gilmer. "Joint physical custody means the parents have equal parenting time with the child."
For joint custody to work, Gilmer points out the obvious: "The parents have to get along."
How Often Do Fathers Win Custody?
"There are many factors involved, and the court uses the best interest of the child standard to determine who wins," said Gilmer.
The court may look at the child's current living arrangements. If a child has been living with one parent, the court may be against moving the child and risk disrupting his or her life. If one parent was the primary caregiver before the divorce, the person who provided for most of the child's day-to-day needs, the court may decide that the parent should stick with the role.
The court also looks at whether both parents work and who has the better childcare arrangements. Mental health and physical health also play a role. Which parent is mentally and physically better equipped to provide for the child on a daily basis? Does either parent have a substance abuse problem? Who has their finances in order? What is the home environment like?
The court also looks at how parents interact with each other. "If a parent intentionally interferes with the visitation rights of the other parent they won't get custody," said Gilmer. "The court will observe the parents and make a determination about what parent is best able to encourage a relationship between the child and the other parent."
The list goes on and on, but the point is that fathers don't have an advantage or disadvantage over mothers when it comes to child custody. The parent who is best able to make decisions for and care for the child wins.
Custody Tips for Fathers
"My biggest tip to fathers is that they have the same rights as the mother does," said Gilmer. "A mistake is that fathers sometimes allow mothers to have complete control over the rearing of a child because they think that they have fewer rights than the mother." Don't forget you are just as important as the mother.
He also encourages clients not to try to represent themselves in a custody battle. "Trying a custody case is very complex and certain rules that have to be followed in order to get evidence in," he said. "There are rules that have to be followed regarding testimony and what’s appropriate to testify to and not appropriate to testify to. If a person goes pro se meaning if they represent themselves, they are going to be held to the standard of a lawyer in trying a case."
Another piece of advice: try to keep things civilized. "The best way to keep a situation amicable is to have respectful communication," he said. "That takes two people."