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Fathers Rights - What Men Need to Know

Updated on April 4, 2014
What rights does a father have in divorce and custody disputes?
What rights does a father have in divorce and custody disputes? | Source

by Kathy Batesel

Know Your Rights and Protect Them

Fathers' rights have often been overlooked when it comes to child custody and visitation, even when they've been forced to pay child support. Because state laws don't allow visitation to be connected to how much is paid in child support (or how often!) even men who have made their payments faithfully can find themselves in a painful position when their ex-wives withhold visitation, try to turn their children against them, or try to manipulate them into paying for more than they owe.

Although the American legal system's wheels move slowly, the changes that have taken place over the last two decades give fathers more rights than ever before, but many men don't know what their rights are or how to protect them.

My ex-husband found himself in this difficult position soon after we became an item. We spent many thousands of dollars in one of the worst custody cases imaginable. One of our many attorneys told us that our case was more complex than a murder trial! Although every state has its own laws, some principles are true in just about every state of the union - including their guidelines on fathers' rights. Keep reading to learn what your rights as a father are and how to protect your relationship with your children.

American Principles of Fathers Rights

Every state in the union recognizes that parents have rights and responsibilities, and I'm not aware of any states that explicitly favor mothers in the courts, but in reality, tradition dies hard. From the dawn of the 19th century until just the last decade or two, courts relied on what's now called the "Tender Years" presumption that assumed mothers were better able to nurture children during their formative years. (View the video at right to learn about recent cases when the Tender Years doctrine may still be used.)

In order to get custody of his child, a woman had to decline taking her children or a man would have to prove the mother was unfit to parent - not an easy task in a court system predisposed to thinking that motherhood was nearly the same thing as saintliness!

(Just to give you an idea of how rare this was, my mother didn't want to take care of my brother and me, so my father was awarded custody. Throughout my elementary and high school years, I never knew another child who lived with their father only.)

Alongside the feminist movement, the Tender Years doctrine shifted to one that focuses on the best interests of the child. The Best Interest doctrine considers which parent can better provide for a child's emotional, educational, financial, physical, and social needs. This is more complicated than simply deciding custody based on gender, but it opened the doorway for men to get more recognition in the court process.

It hasn't been an easy process. Judges who supported the Tender Years doctrine already believed that the mother's custody was automatically in the child's best interests. Over the last two decades, as these judges have retired from the bench, they've been replaced with younger legal professionals who have a different understanding of what best interest means.

Both male and female parents today have the right to:

  • Participate in legal decisions affecting their children
  • Act as their child's agent and authority
  • Develop their relationships with their children without unnecessary interference
  • Have access to their children without unnecessary interference

They also have responsibilities that include:

  • Providing for their children's physical needs, including food, shelter, and clothing
  • Fostering their children's emotional well being
  • Keeping their children safe
  • Ensuring their child has reasonable opportunities for education and socialization

In short, state laws now recognize that the duties of parenthood can be completed by men or women equally well.

Boorum & Pease Special Laboratory Notebook, Record Ruled, Black, 300 Pages, 10-3/8" x 8-1/8" (L21-300-R)
Boorum & Pease Special Laboratory Notebook, Record Ruled, Black, 300 Pages, 10-3/8" x 8-1/8" (L21-300-R)
With a witness signature block on each page, you'll find this handy for keeping a journal AND getting witness evidence as events unfold. I wish we'd had one of these!

Prepare Your Custody Evidence

You'll need to have evidence that lets a judge or mediator know that the child benefits from having time with you. You can present a variety of evidence to show the judge what you want the judge to see:

  • Journals - keep a chronology of factual events. Avoid opinions when you make records of what she said, when you were denied visitation, or things that harmed your children.
  • Computer evidence - chats, Facebook posts, and e-mail exchanges may help you prove that you're a terrific parent who deserves the custody or visitation you're seeking.
  • Witnesses - Select only reasonable witnesses, but consider people you don't know who can provide good information, like teachers and neighbors.
  • Photographs that show how your child is spending time with you or that document questionable bruises or abuse that happened when your child with your ex.
  • Recorded conversations. You may be able to use telephone recordings in some states, under very limited guidelines. Even if you can't use them, however, you can review them before your hearings to make sure you remember exactly what happened during a conversation. (It's a good idea to have very few conversations if you can't afford someone to type a transcript of the entire conversation. I typed thousands of pages of these for my ex-husband's trials.)

The video at right gives a good introduction to preparing evidence for your case. Your attorney will not build your case for you. It's up to you to put together evidence, state your goals, defend against attacks your ex might make that are relevant to the kind of parent you are, and turn it all over to your lawyer. Your attorney will take the evidence you provide and make it meet the requirements of the court system in a way that will help you achieve your goals.

How to Protect Your Rights as a Father

Guarding your parental rights is not going to be easy if you and your ex are hostile with each other. However, if you want to remain an active part of your children's lives, it's necessary to keep this goal in mine no matter what happens.

You'll need to demonstrate that you are an active, caring parent. You'll want the judge or mediator to see that you're a reasonable person who uses good judgment. Above all, you'll have to prove that you put your children's needs first, ahead of your own and ahead of circumstances in your life.

Being an Active, Caring Parent

1. Express interest in your child's school performance and extracurricular activities. Talk to kids about these things, and attend events whenever you're able to. If necessary, approach the school to get copies of your children's grade reports and notices sent home.

2. Be alert to your child's health needs. If your child needs to see a doctor, don't procrastinate or avoid taking him or her. If your ex has been taking your child to the doctor for a serious health issue, stay involved in your child's treatment as much as is reasonable.

3. Spend quality time with your children, but don't overdo it. It does require that you think about how to have meaningful activities with your child, even if it's just preparing dinner together. It means being a great listener, a source of wisdom, and somene who provides occasional opportunities for learning and enjoying things together. Don't focus so much on doing things that your child or your ex sees you as a tour guide or a passport to fun, though. Your goal is to let the court see the kind of everyday parent that you are.

4. Do not interrogate your child. Your ex has a right to raise your child, too, and how she does it is no longer your business as long as your son or daughter isn't in danger. Your anxiety does not constitute danger! Always listen to whatever information your child volunteers, and it's ok to ask a few reasonable questions, but if you keep your child up late, withhold food until after you've satisfied your curiosity about what's happening in their other household, or try to manipulate your child into dishing the dirt about your ex, then you are being abusive. Similarly, don't make critical remarks about your ex in front of your children, even if you're talking to someone else. These are emotionally abusive behaviors that could restrict your visitation or custody.

Be a Reasonable Person

1. It's easy to let emotions overrun our mouths where children are concerned. No matter how conflicted you are with your ex, think before you speak. Don't make threats or tell her what the law or courts will or won't do. (You truly can't predict such things, and you'll make an ass of yourself if you try. Besides, don't you hate it when people put words in your mouth? Judges don't care for it either.)

2. Do all you can to show that you support your child's loving relationships with others. Even if you can't stand your ex, your child loves and needs her. Everything you say or do should reflect your awareness of this fact. At the same time, honor your child's needs to have you in his or her life, too. Be flexible about visitation if it's reasonable, but don't flex so much that you appear disinterested. Consider an example: If your ex wants to change visitation one weekend because she wants to take the kids to a family reunion, go ahead and change while negotiating a way to make up the time you missed. However, if your ex wants to change visitation so your child can sleep over at a pal's house, you could appear uninterested in spending time with your child if you agreed. Being able to recognize and negotiate what's important to change visitation for and how to find solutions to make up that time are important to demonstrating that you're reasonable and support your child's best interests.

Put Your Child's Needs First

1. If you've been ordered to provide support, do it. Always. If you have to go get extra jobs to make ends meet and still keep up with your child support, then do it. If it's unfair, unconstitutional, and unreasonable, pay it anyway. File for a change of support if you're not able to make ends meet, but do not miss payments. Although states aren't allowed to use support as a basis for determining custody and visitation, the people who decide your fate are human. If you're not paying your support, you will face an uphill battle before you set foot in a courtroom.

2. Never violate a court order that's in place about your divorce or custody. Your ex-wife's threats about how you won't see your child because you had an affair or did something else "wrong" that had nothing to do with your ability to be a good parent aren't going to make you "lose" in court.

3. Consider hiring a guardian ad litem (GAL). A GAL is a family law attorney who is trained to evaluate children's best interests and represents children in divorce and custody cases. They'll conduct an evaluation and tell the court what they believe is in the child's best interests based on conversations with you, your ex, and your child. In some cases they may seek additional information from schools or other caregivers, too. Their loyalty is to your child, not you or the child's mother, just the same way as your attorney must be loyal to you.

Hire a Family Law Attorney

Don't simply hire the first or cheapest attorney that comes your way! General practitioners may not be up to date on recent legal changes when it comes to family matters. You'll pay for their inexperience through the extra hours of work they have to do to get updated, or through unhappy results from the court.

Find one through an association like the American Academy of Matrimonial Lawyers if you want an attorney that has demonstrate above average ability and experience in family law matters.

To give you an idea of how important this can be: That horrendous custody battle I mentioned earlier involved about ten attorneys from five different states. Only two of them really performed to our expectations, and of those, only one was truly outstanding and effective. He charged us $500 an hour, compared to those who charged about one-third as much, but he saved us many months' worth of expenses and got custody changed to my husband in less than a year. He was the only attorney my husband's ex couldn't find her way around.

Obviously, I don't know your specific circumstances. But I wish you the best possible results in your mediation or court case for your child or children. You deserve to be a part of their lives and they need to be a part of yours. Feel free to contact me privately by e-mail with questions, and if you found this helpful, please let others know in the comments below or by sharing it with people who might benefit.


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