Historically, the tender’s years presumption was law and effectively held that young children were presumed to be better cared for by their mothers, who most often received custody and the fathers “visitation” on divorce. That was a different time when the traditional family had a father working and a mother being a home-maker. This gave way to a gender-neutral legal position that meant, in theory, the recognition that either parent was presumptively able to have physical custody. The blog explores Father’s Rights now, trends, and suggestions for maximizing time in custody litigation.
Since this time, same-sex marriage has become legal, more women work, and work itself has changed—many mothers or fathers telecommute. This too places men on a more equal footing for support for Father’s Rights when demonstrating to the court they have been (as they now are) more able to engage in all facets of a child’s life, and now “visitation” has been replaced with “parenting time”, more recognition that a father is just as equal as a mother to have custody and does more than “visits” his children.
All while this is occurring for Father’s Rights, another move has been moving father’s from the sidelines and placing them squarely into their children’s lives. This is the notion that at least aside from nursing infants, joint physical custody is what is in the children’s best interests. In some states, this is the presumption for courts—equal or joint physical custody. This is not yet the case in Indiana. There is some significant constitutional support for the presumption of joint custody. Parents have a fundamental right to raise their children; and a state law that presumes anything other than joint physical custody as a starting point, is an impermissible state interference by the state with this right, as the argument goes.
All of this noted, anecdotal evidence suggests courts are providing more parenting time than what is presumed in the Guidelines to fathers who are not awarded custody. Further, some courts are adopting 5-2-2-5 or 3-2-2-3 (day rotations) equal parenting time. Before addressing joint time, it is critical to understand that Father’s can and are entitled to seek sole physical custody. This is often the case where a mother becomes addicted to drugs or has a mental illness.
However, to obtain joint physical custody at trial, Father’s need to put on the right evidence. Instead of now having to try to demonstrate the mother’s weaknesses, the theme should be why joint custody is in the children’s best interest, and, logistically, how it will work. Also, a father needs to show he wants joint custody, not just because it is his right, but because he is just as involved as the mother.
This is all part of the trial theme. Fathers need to establish that they have been involved in the children’s education. What do the school records say about who attends parent-teacher conferences? Which parent participates in field trips and is involved in sports? So school is a place where significant evidence should exist to support joint custody. A father who cannot name the children’s teachers, doctors, and friends loses ground on a joint custody plan.
Presupposing you are active in the children’s education, it is key to show a plan in the evidence to live in the same school system or demonstrate how the children will get to and from school if that is not the case. In addition, Father’s need to be able to demonstrate their support network, whereby they have the flexibility to stay home with a sick child or leave work early if a child is ill.
Clearly, Father’s Rights are occurring because of the attention paid to this issue over the years, but also because the notions of what constitutes a family and ways of work are changing to make joint custody more workable. Now fathers are not faced with a trial strategy of having to “destroy” a mother’s parental ability to get joint custody. With the right trial evidence showing joint custody is in the children’s best interests, and how it can work practically, your right’s as a father may well wind up in joint custody.
This blog post was written attorneys at Ciyou & Dixon, P.C. who handle divorce and paternity case with custody issues throughout the state. This blog is intended for educational purposes only and is not intended as legal advice or a solicitation for legal services. It is an advertisement.
