Family law is evolving in the subject of father’s rights, and the changes debunk the myth of a greater favorable outcome for the mother. In the past, it was easy to assume all family dynamics were made up of a working dad and a stay at home mom. Family dynamics, gender roles, and family laws have evolved. As a result, a father’s fate in a custody settlement has been affected in a fair way.
In the 19th century, a father had reason to fear the outcome of a custody battle due to a doctrine known as the “Tender Years”. This doctrine awarded custody to the mother instantly. Typically, the outdated doctrine believed children under the age of seven required their mother’s care daily.
Under this system, divorced fathers had no say in how their children were raised and lacked the right to see them whenever they wished to. Visitation could be arranged if the mother allowed it.
In the early 20th century, custodial laws evolved. Fathers could be awarded custody if there was hard proof the mother was unfit.
In the 1960s, cultural shifts changed the statute to fathers rights as women started entering into the workforce. This changed the overall cultural attitude on the father’s role in raising his children. The “Tender Years” doctrine has been replaced with a new doctrine practiced in the courts known as “Best Interests”. This current doctrine is gender-neutral and holds the assumption of 50-50 custody sharing between parents. The updated doctrine seeks out the most peaceful environment for the children and places the parties on equal starting ground.
“The biggest myth is the court favors the mothers over fathers,” said Shirin Asgari, a San Diego Family Law Attorney. “A lot of men think the court is going to be biased against them or that it will be more difficult for them to get joint or primary custody than it is for their female counterparts.”
Fathers need to know their rights and remain confident under the pressure of child custody cases involve. Jeff Wittliff is another family law attorney in San Diego, and strongly encourages men in this situation to seek out proper legal representation as soon as possible. Wittliff said it is helpful to find an attorney that can articulate the strengths of the case.
“Second, they should document everything,” he said. “Keep a journal of custodial time with the children, interactions with other party and citations to pertinent written correspondence.”
The court will consider the best interests of the pursuant to §Family Code 3011 when making the final decision. They consider health, safety, and welfare of the child.
“They also monitor any history of abuse, the nature and the amount of contact the child has with both parents,” Wittliff said. “The courts also consider the use of alcohol or illegal substances by the parents.”
In court, the judge will ask numerous questions to both parties to ensure they are placing the child in the right circumstances. The judge will want to know the living arrangement for the child, the plan the parent has for school and after-school care. The parent needs to show they are prepared and obtain knowledge to ensure the child will have the proper care.
“A father should carefully consider these factors when discussing their case with an attorney in an effort to sufficiently plead their case before the court,” said Wittliff.
In most joint-custody settlements, both parents have an equal say over important decisions pertaining to the child. Both parents should be knowledgeable in questions about insurance, medical care, school issues and anything critical that affects the child’s overall well-being. A father has the right to know about grades, disciplinary issues, and health matters.
Our society has advanced and shifted the way we view gender roles. Fathers can absolutely provide a warm and loving home for their children.