In love, war, divorce and most other major aspects of life and daily living, someone or some side has an actual or perceived advantage. Most fathers in child custody dispute cases recognize that a large part of our society has a general belief that mothers should have custody of their children and believe this is reflected in custody laws—mothers have an advantage because women carry and bear the children of the world. However, many changes are occurring. Now there is gay marriage and adoption and more children are being raised by third parties like grandparents. So, the question becomes, where does this leave fathers who want custody? This blog covers the two key aspects of father’s rights and how they may obtain custody.
The first component for a father seeking to assert his right to custody is the law and how it is trending. Specifically, while the law has favored custody in mothers in the past, the maternal preference rule has been abolished. This means that when custody is first established there is no legal rule that gives mothers an advantage. Why is this important to know? Basic psychology. If you go into something with the wrong mindset, it may subconsciously sabotage your efforts. You can obtain custody. The legal inquiry now is what is in the child’s best interests. Also, while the law still presumes one parent will have physical custody and the other parent, parenting time, the legal trend is equal time or joint physical custody, no matter how it is labeled.1 Where parents live in close proximity, the time may be divided on a day-to-day rotating schedule, such as 3-2-2-3 or 5-2-2-5.
The second component is the case. Fathers who want physical custody must do a lot of work in this regard. You may be the most dedicated parent, love your children the most, and the parent who your child seeks out first when he or she is sick or injured, but even without the maternal presumption, you cannot simply convey to your attorney or in court that you want custody. You have to prove this and that your custody is in the children’s best interests. So how do you do this? A normal answer to this question is to say, “ask my family and friends” and, “hey look at these pictures with the kids!”. However, if you really think about it and want physical or joint custody, you have to show the court more.
The Court can consider anything in an analysis of what is best for the child. The most powerful evidence is evidence that exists and is neutral—not from family or friends who may favor you or lack objectivity. The best sources are common sense, but this takes some thought and normally consist of the following:
- Doctor’s and Dentist’s records (who takes the children to the doctor as may be documented in the medical records).
- School records (who signs the child in and/or out of daycare or school?)
- Church records (who observes you with the children at church and are there attendance records?)
Any type of evidence that is neutral and reflects engagement in a child’s life can be powerful evidence for a court, with the caveat that there are rules of evidence that may cause this to be excluded if not properly authenticated and offered.
The third and final component is the case and your theme. If you cannot agree on custody and your case goes to trial, you may be awarded custody with the right mental focus and evidence, but YOU must convey who you are and why custody is best placed in you in the children’s best interests. The strongest evidence, in any case, is not enough if the judge determining your credibility does not believe physical custody with you is in the children’s best interests. This is a positive and often determinative. Even if the past objective evidence is not on your side, you can have implemented a plan and have a theme to show now and going forward it is in the children’s best interests you have custody. This may be done by changing jobs to accommodate primary custody and showing how your plans and lifestyle will best meet the needs of the children going forward and how it will also work best for mother.
Ultimately, Fathers can obtain physical or joint custody and do have real custody rights in court. However, you need to present the evidence to show your involvement in the child’s life to date and/or a plan or theme going forward that will promote stability and continuity in the child’s life and facility a meaningful relationship with the other parent (the mother). Most attorneys and judges have seen a sincere father (or mother) falter in court when they do not have a workable parenting plan or cannot answer a question on cross-examination about how what they are seeking in custody will work between the parents. Thus, know what you want in custody, why you should get it, and do not forget to have a plan that will best facilitate the other parent’s time. These are the keys to maximizing your rights as a father.
This blog is written by attorneys at Dixon & Moseley, P.C. who handle complex, high conflict child custody cases of all types in Indiana courts and on appeal. This blog is intended to provide general educational information about father’s rights in Indiana. It is not intended as legal advice or a solicitation for services. It is an advertisement.