The family code of most States has been written so as to be gender neutral when it comes to guiding courts in the area of which parent should get custody. This means that the courts are supposed to make decisions based solely on the “Best Interest of the Child” or BIC without regard to the gender of the parent that gets custody. The question should be which parent having majority custody would be in the best interest of the children. The problem is that it is very difficult for judges to overcome cultural norms. The standard has been mommas take care of babies and daddies pay child support for a very long time. Overcoming this built in prejudice is difficult but not impossible.
It Can Be Done!
I have had great successes in representing fathers who want to be the parent who determines the primary residence of the children. In those cases the dads followed most, if not all of these suggestions.
- Pick the right attorney. This seems simple but it is incredibly important. Just as judges have to overcome built in stereotypes against fathers having majority custody lawyers struggle to adapt to the new world in which fathers are as good and in some case better parents than mothers. This means finding a lawyer that truly believes that fathers can be in the best interest of their children.
- Keep your temper. Again this seems like a straight forward requirement but I have seen numerous good cases for fathers fall apart because they lost their temper and said something they shouldn’t have. Getting arrested for family violence is the end of a dad’s quest for custody. The judge simply isn’t going to buy the argument if the police arrest you.
- Keep records. Evidence is king in a trial. The parties can tell the judge anything they want to about each other but without evidence the judge generally gives very little credibility to stories about how bad the other person is. This is where good record keeping comes in. If you want to convince the judge that she buys the children’s affection you need to have the receipts for trips to the toy store etc. If you want to show that she spends all of the money you give her to support your children at the nail salon or on alcohol you need physical proof like credit card receipts. If you expect the judge to believe that she leaves the kids with you all the time so she can party you are going to need more than your word. A journal or calendar marked with every hour that your kids were with you is persuasive.
- Build connections. You need to know who your children’s teachers are. Who their friend’s parents are. The coach on the little league team. More importantly these people need to know you. Not in a passing way but in meaningful way. They are a great source of information and potential witnesses to support your position.
- Be involved. You need to spend time with your children and you need to be able to prove that you do. Take every second she’ll give you with them. Document that you are doing it on a calendar. Volunteer for anything and everything you can. But be careful that you aren’t a flash in the pan. Judges can tell when you are trying to be super dad just for them. You need to consistently be a major presence in your kids’ lives.
- Be prepared for the costs. Divorce and custody fights aren’t cheap. Fighting your way up hill to be a dad with majority custody is difficult. There are things that you are going to be asked to spend money on them. The major cost is of course your attorney. He or she will have to spend a huge amount of time doing discovery, taking depositions and talking to the judge on your behalf at hearings. You may also have to take a psychological evaluation along with the mother. You may be asked to pay for both evaluations. This can be expensive but incredibly powerful evidence on your behalf.
- Gather proof but don’t use your kids. Do not under any circumstances grill your child about the other parent’s activities. Judges absolutely hate that. Instead use alternative methods for gathering intelligence. Private investigators are an expensive option. Another is to invest in a voice recorder to record your interactions with the child’s mother. While this may seem a bit James Bond, and the judge will probably not be happy that you did it there is no better protection against lies than a recording of what happened.
- Don’t give up. Custody is a war not a battle. You may not win the first time. Losing a battle doesn’t mean you lose the war. I have worked with many clients that went into their first hearing knowing that the chances of getting everything thing wanted were slim because the deck was stacked against them. The strategy we used was to not plan on completely dominating the opposition, as that was unlikely to occur. Instead we planned to win my inches. We created a game plan that had us coming out ahead after each confrontation. We then began again by gathering information in preparation for the next fight. Each time we got a little closer to where we wanted to be. Sometimes this takes years. Not every case requires this strategy but if you can’t win it all at once, win what you can and then start preparing for the next battle in the war. If you consistently win battles you will eventually win the war.
There are no guarantees. Custody fights are often horrible affairs that end up with no real winners. Fathers face an uphill battle, but if you are committed to gaining custody of your kids and are willing to put in the hard work it can be done.