Do Dads Fail to Win Joint Custody Because They Are Less Competent Parents? Bad Litigants?

Very good question. Tricky question too. Not because it’s hard to answer (it isn’t), but because it’s a tricky question to understand accurately.

I don’t find that otherwise decent and deserving fathers lose disproportionately because they are disproportionately more inept in court, more surly, more violent, less prepared, too ignorant or apathetic about the kids and their needs, etc. That can and does happen, however, and that’s a shame when dads lose just because they didn’t bring their AAA game to court (yes, their AAA game, not their “mere” A game—more on that below).

Good dads too often lose because they believe—erroneously—that the court will give them a fair shot. Too many courts don’t.

Many judges shamefully presume all fathers to be unfit or inept parents (and far too often presume all mothers to be parental paragons) and never give dads a meaningful chance to prove their parental fitness in a fair fight. By way of one example, I have been involved in many cases in which I’ve asked for temporary orders of joint equal physical custody to give a 50/50 custody schedule a chance to prove itself viable or a failure, and the judge will deny the motion claiming, “We can’t treat children like lab rrrrats!” or the something to that effect. Then the judge issues temporary orders that give Dad a minimal parent-time/visitation schedule (all the while with the judge swearing up and down that the “temporary” orders won’t have any precedential or prejudicial effect on the final custody award). Then that same judge will cite to the “fact” that the temporary custody award has been in place for a year or two and is thus “the status quo” and so it is “in the best interest of the children” not to “disrupt a schedule in which the children are thriving).”* Come on.

While the discrimination against fathers is far less than it once was, it’s still strong. Dads still face an uphill battle for obtaining a custody award mothers can get with one hand tied behind their backs. Dads lose because they fail to understand that to win 50/50 custody (or sole custody, if Mom’s a bum and shouldn’t have custody) they have to make it all but impossible for the court to find otherwise. They can’t just convince a court that they aren’t inferior, second-class parents. They have to “over-win” on the issues. They can’t be “just as good a parent” as Mom. No, to be treated equally, they must, ironically, prove themselves (whether it’s true or not) to be superior to Mom as a parent. That’s not fair to dads or moms, but it’s reality in too many cases.

*”Thriving” is a word that is now like bile in my mouth because of the way it is so shamelessly abused in the context of child custody award analyses.

Utah Family Law, LC | | 801-466-9277

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