Tag: 50/50 custody

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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If a father is working full time and is expecting to get 50/50 custody, how does he arrange for the kids when he is at work from 9-5 p.m.?

If a father in this position can’t figure this out on his own, he’s probably not in a position to be entrusted with exercising 50/50 custody. If a father wants 50/50 custody but can’t think of or describe to the court a way to make such a schedule work, who will have confidence in his ability to exercise it? That stated, we must acknowledge that for many fathers, a 50/50 custody schedule may be a new experience. Not impossible to do, but divorced and separated fathers do need reasonable time and accommodations to adjust.

50/50 custody does not mean that the parents must spend precisely the same amount of time with the children each day, week, month, and year. Typically (because the courts and legislatures realize that some parents may be the children’s primary or only breadwinner), “equal custody” or 50/50 custody means that the children spend an equal number of overnights annually with each parent. So even if the children spend more time during the day with Mom because she is a stay at home parent, as long as they spend an overnight with Dad for every overnight they spend with Mom each year (even if that means after Dad gets home from work at 5:30 or 6:00 p.m.), that’s considered equal custody.

Many fathers have to adjust to balancing their primary breadwinner role with more child caregiving and supervision. It’s not that such fathers cannot do this, they just need to be given the chance to adjust to the situation now that both parents don’t reside in the same household with the children. After all, the mother likely have to make adjustments in her schedule and life as well. She will probably need to work more outside the than she may have before the separation or divorce. The courts often (not always, but often) assume Mom will adapt to divorce without skipping a beat on the child care and custody front, while Dad often faces an “unfit until proven fit” presumption he has to work mightily to overcome six ways from Sunday.

Utah Family Law, LC | | 801-466-9277

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Should I get sole custody of my children if the dad does not want custody?

Should I get sole custody of my children if their dad does not want to be involved with them? Or try to talk it out before I go through with it?

Your children deserve a loving, salutary relationship with both of their parents, so it is morally right to urge and encourage the father in this situation to love and care for his children. Yes, have that talk with the father. It’s pointless, however, to nag or try to guilt a father into loving and caring for his children when he doesn’t want to love and care for his own children. And it’s plain irresponsible and wrong to try to involve a father in his children’s lives if that father is a danger to the children, whether physically or emotionally/psychologically.  

But where a father is not abusive, not a danger to the life or health of his own children, it’s not a bad idea to leave the door open. One day Dad might wake up and want to walk through it for the children’s benefit. Leaving open the possibility does not, of course, mean that the children will be receptive to repairing (or in some cases forming) their relationship with their father, but why slam that door and nail it shut if you must not? Do unto others as you would have them do for you. Don’t needlessly deprive the children of an opportunity to bond with their father.  

That stated, this does not mean that you must ask the court for a joint child custody award. “Leaving the door open” does not require you treat Dad like an involved parent when he’s not. If Dad’s not around, not interacting with the children, not playing with them, bathing, feeding them, etc., not financially supporting the children, then there’s no good reason to act as though he is when the child custody awards are made. There’s no reason to “leave the door open” in a way that sets the kids up to have their hopes dashed and their hearts broken. If an absentee parent (father or mother) says that he or she recognizes the error of that absentee parent’s ways and wants to make amends, there must needs be a price to be paid by that parent. There will be hard words to hear from the other parent and child. He or she should expect caution and hesitancy, even skepticism, from the children and the other parent. There will be hard work and sacrifice ahead as well (and not just for Dad). Easier said than done. I get it. But if the children are willing to give Dad a second chance and he’s proven he can and wants to make good, it would be tragic and frankly inexcusable to deny the children that. 

Utah Family Law, LC | | 801-466-9277  

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Father has 50/50 custody. Now ex is trying to take it away. What to do?

I am a father who has exercised at least 50/50 custody with my ex. Now she’s trying to take me to court for full custody and me getting every other weekend visits. How can I avoid losing 50/50 custody?

First, thank your lucky stars you are a father who currently has 50/50 custody of his children. Far, far too many fit and loving fathers who could easily exercise joint equal physical custody of their children and whose children would do nothing but benefit from the exercise of joint equal custody are needlessly and unjustifiably denied a joint equal child custody award by courts who simply cannot bring themselves to believe, much less conceive of, the idea that children being reared by both parents equally is better than relegating one parent to second class visitor status in his child’s life.

Second, the fact that you have been exercising at least 50–50 custody of your children for the past few years helps to make it much harder for your ex to build a case against you for modifying the child custody award in a manner that deprives both father and children of a 50–50 custody schedule. Again, be grateful this is the case, because if you were trying to win 50–50 custody of your children on the first go around during your divorce or other child custody legal action, the odds are grossly stacked against fit and loving fathers.

Third, if you are afraid that your judge is going to discriminate against you on the basis of sex, you need to understand this principle: “if it isn’t close, there cheating won’t matter.” Otherwise stated, you need to ensure that you win six ways from Sunday. you have to bring overwhelming amounts of evidence and proof into court, so that you leave the judge no option but to rule in your favor. Easier said than done, certainly, but now is not the time to become complacent or substitute hope for effort. Spare no expense to preserve your joint equal physical custody award. A necessary component of a winning case is that you are living a life beyond reproach. Get your house in order. If there is anything remotely amiss in your life, correct course immediately, clearly, and permanently.

Fourth, make sure you understand and that your attorney understands what statutory and case law factors and criteria govern the original child custody award and a petition to modify the original child custody award. It may be that your ex does not have sufficient grounds for a petition to modify child custody to survive a motion to dismiss.

Fifth and finally, do not take on a petition to modify child custody alone, without a vigilant and skilled attorneys assistance. There is an undeniable culture of bias and discrimination and prejudice against fathers when it comes to courts making child custody awards. This doesn’t mean that every judge in every court indulges in sexual discrimination against father, but it’s virtually impossible to tell the difference between an impartial judge and a biased one, and so you need an attorney who will not suffer fools gladly, who will defend the joint equal custody award.

Utah Family Law, LC | | 801-466-9277

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