Monday, 07 February 2011 17:51

Stay at Home Dads Rights

Written by  Matt Allen
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dads rightsAs more and more fathers are becoming stay-at-home dads, many have questions about dads rights and if theirs are the same as stay-at-home moms.

Typically, the mom who stayed at home during the marriage receives primary custody of the children along with child support and alimony after a divorce in order to continue living the lifestyle she was accustomed to.

But with the new era of stay-at-home fatherhood, is it any different for a stay-at-home dad?

While the logical answer is it shouldn’t be, there is still the mindset in our country that mothers should be awarded primary custody even if the husband is the primary caretaker of the children during the marriage.

All states have laws that prohibit making decisions of custody, child support, and alimony based on gender, though in reality dads rights are often ignored.

There used to be the Tender Years doctrine that presumed that by virtue of the fact that a woman was the mother of a child, that she must be the superior parent. The days of presuming that children under age 13 should be with their mother are theoretically long gone, but any father who has gone through a custody battle knows that mindset still exists.

If you have ever been involved in a child custody case you most likely have heard the phrase "best interests of the child."

Almost every state determines custody and visitation issues based on the best interests of the child standard. State statutes and case law define this standard differently, but in general there are certain factors and themes that appear in the majority of states. You should become familiar with the factors in your state and which ones may be critical in your case.

Child support is normally more cut and dry than an award of child custody. Most states use a formula for child support based on the number of overnights the child spends with each parent, the parent’s income, and the child’s age.

Of all areas of divorce, spousal support is the most negotiable. Some states have statutes that give judges factors to consider if the support decision is left to the court, but in many states, there is no hard and fast method of calculating alimony payments. And to be quite frank, estimating what a judge may do is often fruitless.

Here are a few tips for the stay-at-home dad to start your divorce on the path to preserving dads rights to parent their children:

  • Be the first to file. The person who files has an immediate advantage. The petitioner gets to present their side first anytime they’re in court. This includes speaking first at the settlement conference and being able to present evidence at trial before your ex.
  • If your jurisdiction allows it, enter ex parte (unilateral) orders that reflect your current custody situation. Ex parte orders allow you to have the judge enter an order establishing custody for the pendency of the divorce. Although the order can be modified later, the ex parte order gives you the first say in the custody battle.
  • Make sure you can document what the established custodial environment currently is. Gather any proof you may have of what you do on a daily basis as the children’s primary caregiver and proof of the children’s relationship with you.
  • Have witnesses that can testify about your relationship with your children. You will want to have people who have seen you and your children interact in specific instances and can explain how that interaction took plae and your children’s reliance on you as a parent.
  • Do not deny parenting time with your spouse. All judges frown upon one parent trying to keep the children from the other parent. Even if you are the primary caregiver, it is important that your children maintain a relationship with their mother.
  • Be prepared to negotiate. Most child custody and spousal support decisions are a result of negotiations between the parents and their attorneys. It is okay to hold out for what you believe is best for your family, just make sure your attorney is fully informed of what you are trying to accomplish and he/she is willing to fight for it.
  • Don’t bad mouth your spouse especially in front of your children. This hurts your children more than your spouse, and judges will not tolerate this type of behavior.

Get more information on how to deal with family law when you are a man. Visit DadsDivorce.com for answers to all your dads rights questions.

Contact a Cordell & Cordell mens divorce attorney if you need legal representation as most parties in divorce and child custody cases do.

 

Last modified on Thursday, 06 October 2011 20:38
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