Don’t Change Custody Laws, Instead Become More Engaged Fathers

gavel“The courts, they just award custody to the mother because they don’t think dads can handle the kids on their own.” As a practicing attorney, I have heard that complaint more often than not. I’ve even heard that comment from my own mother while she struggled to understand what was going on with my sister’s recent divorce and custody dispute. Each time I hear that comment I cringe, because it’s not true. At least it hasn’t been true for a very long time, but that hasn’t stopped the National Parents Organization, more specifically Ned Holstein, from claiming it to be true. The National Parents Organization, which used to go by the name Fathers and Families, believes that the courts are giving custody to too many mothers as opposed to fathers, and the people in that organization want to stop the trend by changing the custody laws.

Questioning the integrity of the court system, instead of examining the details in custody disputes, is a mistake. Believe it or not, the courts aren’t part of some vast conspiracy to try to ensure that dads don’t get custody of their kids. Judges are individuals, both male and female, who are placed in a precarious position of having to decide what is in the best interests of children, who they have likely never met, based on the admissible evidence that is presented. Judges make those decisions only after examining the evidence and applying that evidence to factors that have been laid out in previous case law and state statutes.

In Indiana, the judges will look at a series of factors in determining which parent should be the primary custodian of the children. What it basically boils down to is which parent has been acting as the primary custodian of the children? Which parent has been changing the kids’ diapers? Which parent helps the kids with their schoolwork? Which parent gets up in the morning and gets the kids off to school? Which parent spends the most time with the kids? Which parent does the kids’ laundry? From my own personal observations, it just so happens that mom usually ends up being the parent who does most of those things for the children. (This all comes with a caveat that shouldn’t need to be spelled out, but I will anyway: the key word in all of this sentence is “usually.”) As an attorney who practices family law, I have noticed that the courts, at least the ones in Indiana, are not reluctant to give dad primary custody of his kids. When the father has been the parent who has been changing the diapers and helping the kids with their schoolwork, the court will award dad custody without hesitation. And in cases where dad is heavily involved in the kids’ lives, equal to that of mom or nearly as much as mom, the courts haven’t shied away from awarding the parents joint custody or awarding dad significantly more parenting time than what is called for in the general guidelines. What this means is that the amount of time dad ends up with is usually based on how much time dad was spending with the kids before the divorce case began (there’s that “usually” word again).

National Parents Organization’s solution to what they perceive as a problem is to change custody laws so that dads have a better shot at getting custody or joint custody of their kids, but the National Parents Organization has missed the mark. If dads want to have a better shot at having custody of their kids or of getting more time with their kids, they should instead become more engaged in the day-to-day care of their kids long before divorce is even on the table. Changing custody laws is rather complex, and it’s filled with all kinds of potential problems.

The National Parents Organization seems to favor a joint custody arrangement, which I also prefer, but the truth is joint custody doesn’t always work because there are any number of circumstances that can cause the arrangement to be unworkable. Divorced parents tend to move on with their lives once their divorce is finalized. This moving on could mean moving to a different state or city which pretty much eliminates the possibility of joint custody as an option. And forcing parents to remain in one location while their kids are still minors is unrealistic and unenforceable. Also, divorced parents don’t tend to like each other very much and cooperating on the day-to-day raising of their kids can be difficult, if not impossible.

In a perfect world there would be no divorce, and even if there was divorce then the divorced parents would get along and live within a few miles of each other and make all decisions with the best interests of their kids in mind. However, we don’t live in a perfect world, and the courts are left examining evidence to decide what is best for kids. But crying foul and rigging the system in favor of fathers certainly isn’t the answer. There is an easy way to help fathers have a better chance at getting custody or joint custody of their kids — become more engaged fathers.

I’m not suggesting that the fathers out there who haven’t been granted custody of their kids are bad fathers, but they can become better fathers — even the best fathers can become better fathers. Maybe it’s better stated in this way: fathers can make changes to their routine to better fit what courts are going to be looking for when making a custody determination. Fathers can work in some time here and there to give their kids extra help with their homework. They can put in that extra time in the morning to help the kids get off to school. They can pitch in and take over the diaper duties. There are measures fathers can take to help their chances at getting custody of their kids or more time with their kids if divorce happens to be in their future. The key is to be a better father while the marriage is intact before a custody dispute is even viewed as a possibility. Don’t wait to make those changes once a divorce action has been filed because by then it’s too late.

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