What’s the Chance That Soon-to Be Ex-husband Will Get “Final Decision Making” in Joint Custody?

That depends on many, many factors. Some legitimate, some possibly not.

Those of you who have read my content here may have noticed that I am of the opinion (arising out of more than 25 years’ experience as a divorce and family law attorney and the study of the subject in that same period of time) that while the bias against men in divorce and child custody cases is less than it’s ever been in recent history and continues to weaken, there is still a clear and undeniable bias against awarding fathers equal physical custody, to say nothing of awarding them sole physical custody.

Why, you may ask, am I commenting on the subject of physical custody of children when your question asks what the odds a father has of winning sole legal custody (or at least what is known as “final decision-making authority,” which is often a component of what is nominally “joint legal custody,” but is in reality sole legal custody)? I’ll tell you. Before we go any further, if you haven’t figured out the distinction yet, there are two kinds of child custody: physical custody (essentially how many overnights do the children spend with each parent) and legal custody (concisely stated, the power to make choices regarding the children’s health care, education, religious and moral upbringing, and overall welfare).

I lead with how fathers are treated by courts when it comes to physical custody awards to highlight the contrast between the bias against men on the subject of physical custody and the generally far better treatment fathers receive when it comes to the courts making legal custody awards. Why is that?

It’s my opinion that courts are far more likely to award fathers joint legal custody for two main reasons: numeral 1) it’s easier for courts to claim that mothers are or likely will be better physical caretakers of children than men generally and in particular cases than it is to claim that the judgment of women is so superior to that of men as to justify awarding sole decision-making power to the mothers; and 2) many courts feel as though awarding joint legal custody makes a nice booby prize for the father who fought for equal physical custody of his children but lost that battle.

OK, now that we have these preliminaries covered, we will get to your specific question: what are the chances have a divorcing father being awarded final decision-making authority (i.e., what is essentially sole legal custody)?

Although there may still be some bias in some courts in some parts of the country against men when it comes to awarding legal custody, it has been my experience in my jurisdiction where I practice divorce and family law (Utah) that a father’s odds of being awarded joint legal custody are better than even. In other words, as long as the father has not been shown to exercise poor judgment when it comes to his children, he will likely be awarded joint legal custody with the mother.

So for a father to be awarded sole legal custody of children or at least “final decision making authority,” a father would need to prove that the mother cannot be entrusted with joint legal custody, and he would do this by proving that she is lacking in good judgment when it comes to the children and/or exercises her judgment in a way that leads to harming or neglecting the children’s physical, education, moral, emotional, and psychological needs.

Utah Family Law, LC | | 801-466-9277


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