Primary Custody is for Moms: Debunking the Myth (and Advice from Dads Who Have Done It)

Father feeding daughter, primary custody is NOT just for moms.

Many fathers embarking on a child custody case nervously ask their attorneys if gender matters in the Court’s consideration. The response is a heavily qualified, “it should not.” These fathers are concerned about gender bias impacting their ability to have equal or primary custody of their children.

There is a history to these concerns which involves the pendulum swinging in both directions over time. Up until the 19th century, a woman was in jeopardy of being deprived of a relationship with her children as a result of a failed marriage. Men were automatically provided custody, if they wanted it. After much lobbying, the Custody of Infants Act of 1839 was passed by the UK parliament creating a new standard allowing women to petition for custody of their children. This tipped off a long-standing favor towards mothers in custody cases.

Of this movement, a maternal presumption which became known as “the Tender Years Doctrine” evolved wherein it was assumed that mothers were entitled to custody of children up to a certain age. At various stages of application, the presumption extended from age 4 and under, all the way to age 16 and under. Gradually, this presumption too was abolished in favor of the “best interests of the child standard”, with some state statutes actually making specific reference to the equal consideration of both parents. Some states went so far as to find that the Tender Years Doctrine was a violation of the Equal Protection rights afforded by the Constitution. However,

Both South Carolina and North Carolina are amongst the States to have abolished the Tender Years Doctrine in favor of the “best interests of the child” standard. Despite the abolishment, some Judges in both States still employ what is considered a “standard” visitation of every other weekend with a dinner night in the off week. Many feel this parenting schedule often applied in favor of mothers relegating fathers to every other weekend dad status.

Despite the changes over time, do courts still have an archaic predisposition towards awarding primary custody of minor children based on gender? Considering that the Tender Years Doctrine was in place for much longer than it has not been in place, many fathers would probably argue that there is still work to be done to neutralize the application. There is growing advocacy for presumptive joint physical custody to try to alleviate such disproportionate results.

Legislation in North Carolina has been presented at least twice over the last two years to statutorily define equal parenting time as a rebuttable presumption. The proposed amendments to the custody statutes would allow Judges to vary from equal custody for cause, but would make clear that parenting should be equal barring special circumstances and findings. Thus far, there has not been a formal amendment to the custody statute that would create an equal shared parenting presumption. Only a few states have adopted legislation creating such presumption, or variation thereof.

Until there is clearer direction on whether presumptive joint physical custody will be universally adopted, some fathers who have successfully obtained primary or shared custody of their children offer the following tips to others who find themselves involved in contested custody litigation:

Don’t we all think our ex-spouse is “crazy”?: This rhetorical question lies somewhere between humor and truth. The trick is trying to figure out how to manage the relationship with your ex-spouse so that the children do not suffer as a result of adult conflict. While we do not have the superhuman power to change someone, there are things we can do to make the co-parenting more positive for the children. You must make this effort, and have the evidence to show you made it, or you will be viewed as part of the problem by a Judge in your custody case.
If it’s all about “you” then this isn’t for “you.”: The standard in custody cases is best interests of the children, not the parents. You will hear “take the high road” more times than you can count. You may feel like you are the one taking the high road more often than not. Keep doing it. Put your ego aside. The Judge will expect it, but, more importantly it benefits the children. They are, after all, why you are involved in a custody action in the first place.
It’s not about the money…(all the time): Contested custody cases can be expensive. Paying lawyers, child support, expert fees, court costs and the like can feel overwhelming. Stay the course. The alternative is letting someone else determine the
Listen to the experts. For real, listen: If you do not listen to your attorney and other professionals working on your case, you are wasting your time and money. You have to be willing to learn from the process and understand your role in how to improve the situation. Your attorney is your advocate and your voice to the court. They are helping you write your story to present to the Judge. They need to be able to give you constructive feedback even if you do not like it. There may be other professionals, such as guardians, therapists and/or parenting coordinators. They are also involved to help you and your children. Working against them only hurts your case. The Judge listens to these people to decide what is best for the children.
Being a dad does not make you a father: Your attorney will give you advice about what will help your case in court – get to know your child’s teachers, review their medical records, attend their extracurricular activities, etc. However, the end game is not just putting on a show for your custody case. The end game is helping your children grow into amazing human beings by getting to know them and by being truly involved and present in all aspects of their lives. Do not delegate this to someone else or resign yourself to someone else doing this for you. Whether your custody case turns out exactly the way you want or not, this is what is important to you and your children.

Despite myths surrounding custody, an experienced family law attorney can work to help families navigate their specific case to ensure that the outcome is in the best interest of the child, and thus the family as a whole.