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A Father’s Legal Rights to Child Custody Before and During Divorce

Is Equal or Full Parenting Time With Your Child Important to You?

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Father and son playing together
Cultura RM/Bill Miles/Collection Mix: Subjects]/Getty Images

Before and during the divorce process each parent has the same legal right to custody of a child. Mothers and fathers are on legal standing until one or the other gives up or is denied full custody rights.

What does this mean? It is complicated! Even more complicated if you don’t know your state’s child custody laws. Bottom line, until you have signed a custody agreement or a judge has handed down a custody opinion, each parent has the same legal rights when it comes to where a child lives, who the child lives with and anything regarding the child.

I’ve found that most fathers do not have a clear understanding of their legal divorce rights where the children are involved. And in most cases will give up custody out of fear of losing in court due to a gender “bias.”

For example, I received an email from a father who was separated from his wife. He wrote, “My wife moved out with our children, and is refusing to allow me to visit with them. I found out the other day that my youngest daughter had been hospitalized for a minor illness and I wasn’t informed. What should I do?”

It is heartbreaking to hear from a father who, for some reason has come to the belief that his wife has more legal rights over the children. This father has the legal right to pack his children up and bring them home. He has the legal right to contact school personnel, pediatricians and anyone else who may have contact with the child and let them know he is being denied his legal rights and demand to be notified of anything concerning his children.

The longer he allows his wife to make the rules about how or if he can parent his children, the more likely he is to lose an extensive amount of parenting time with his children in divorce court. In my opinion this is the biggest mistake fathers make during the divorce process. They do not take the necessary steps needed to retain equal parenting time or full custody of their children.

According to DivorcePeers.com, the majority of child custody cases are not decided by the courts.

  • In 51 percent of custody cases, both parents agreed -- on their own -- that mom become the custodial parent.

  • In 29 percent of custody cases, the decision was made without any third party involvement.

  • In 11 percent of custody cases, the decision for mom to have custody was made during mediation.

  • In 5 percent of custody cases, the issue was resolved after a custody evaluation.

  • Only 4 percent of custody cases went to trial and of that 4 percent, only 1.5 percent completed custody litigation.

What do the above statistics tell us about fathers and child custody? For some reason the vast majority of fathers are behaving in a way that is not in their best interest or the best interest of their children. Fathers may be giving up equal or shared custody because they’ve heard there is a gender bias, that mothers always win custody. They may give up more custody because they’ve been taught that “children need their mother.”

Here is the truth, you don’t know if there is a true gender bias in the divorce court system if you don’t go to court. And children need fathers just as much as they need mothers. If you are a father who wishes to have equal parenting time with your children you are doing yourself a grave injustice if you give up without a fight.

Do not allow your wife to dictate when, where and how often you will see your children.

Immediately hire an attorney or file a pro se petition with the court to establish equal parenting time with your children.

Do not allow what you hear on father’s rights websites to dissuade you from attempting to gain equal parenting time or full custody.

Do not let the financial cost associated with a child custody battle keep you from fighting. Which is more important, saving money for a child’s college education or fathering your child during their informative years and beyond?

Do not agree to less time with your child without first going through the mediation process or, if push comes to shove a full out custody battle.

Do what you know, in your heart is right for you and your children.

I can’t tell a father what his chances of winning in a custody battle are. I can tell a father that if you aren’t willing to exert your legal rights your chance of winning equal or full custody with your children is zero. The questions you have to ask yourself is; how important is this issue to me? How important is it to my children? If it is important then don’t allow fear of a “gender biased” court system keep you from pursuing your right to parent your children.

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