Whenever a father is seeking child custody, it is essential for that father to understand that he has parental rights that he can exercise. Child custody is awarded to parents by courts based on what the court determines to be in the best interests of the child, and a father seeking custody—just like a mother seeking custody—will need to be able to show that his custody of the child is what is in the child’s best interests.
File a Petition for Child Custody
The first step in seeking child custody in most states is to file a petition. If a father is seeking custody as part of a divorce proceeding, the child custody issues will be considered as part of the divorce case. If a father is unmarried and is seeking child custody, he will need to file a separate petition for child custody.
If the father has any concerns about the mother’s fitness or the ability for the mother to keep the child safe until a final child custody order is entered, the father should raise these concerns immediately. The father should also gather evidence that can help with the lengthy child custody case.
Plan Ahead When You Are Seeking Child Custody
Any father who is seeking child custody will need to make plans—and will need to implement them as soon as possible—to demonstrate to the court preparedness for child custody. For example, if a father recently moved into an apartment and wants to be awarded child custody, that apartment should be equipped for a child. The child should have his or her own bedroom, and there should be a clear space for the child to complete homework. If the child is much younger, the apartment should be appropriately childproofed, with necessary equipment like baby gates or other safety schemes. To be clear, a father seeking custody should not wait to make his space child-friendly and child-appropriate. All of those measures should be in place by the time a petition for custody is filed.
Your Actions Now Will Be Considered By the Court for Custody Purposes
Fathers who are seeking child custody should recognize that most courts will look at the past relationship between the father and the child (as well as between the mother and the child) as a major factor in determining how to award or allocate child custody. For example, the court will look at whether the father routinely provided financial and emotional support to the child, and whether the father participated in the child’s educational and extracurricular activities. Any father who is seeking child custody should know that past actions will be considered, as well as present actions regarding the child.
Custody Information for Unmarried Fathers
Unmarried fathers can face additional issues when seeking child custody. If the father was never married to the child’s mother, it may be necessary to establish paternity or parentage, depending upon the particular state in which the father is seeking custody.
If a father needs to establish that he is the child’s legal father, there are multiple ways to do this. Often, the law will already recognize an unmarried father as the child’s legal father if he is listed on the birth certificate (even if he was not married to the child’s biological mother at the time of birth). Otherwise, a father can file a petition to establish paternity. The court can then establish paternity in a variety of ways. Many states presume that a father is the legal father of a child—and therefore entitled to seek child custody—if that father served in the role of a biological father from the moment of the child’s birth even if the father’s biological ties to the child were never specifically established. Some courts will use DNA testing to determine whether the petitioning father is the biological father and therefore entitled to legal rights.
An unmarried father who has concerns about establishing paternity in order to obtain child custody should work with a family law attorney in the state where he will be seeking custody.
Biases Against Fathers in the Child Custody Process
Many fathers are concerned that the court will have a bias against fathers having custody. Given that historically mothers often were awarded child custody and more readily identified as caregivers, fathers worry that the court will not presume that awarding them child custody is in their child’s best interests. However, it is important for fathers to know that many child custody laws in various states specifically address this issue, often clarifying that there is no presumption in favor of a father or a mother. Indeed, many states even have statutory language that makes clear it is public policy and in the child’s best interests to have time with a father and mother after a divorce or a separation unless there is a clear reason that shared custody arrangements would not be in the child’s best interests.
Child Custody Orders and Modifications
When a court decides about child custody, it will issue a final child custody order or decree. Depending upon the state in which you filed for child custody, this final order could go by many different names. For example, some states do not award child custody but instead allocate parental responsibilities or time-sharing. Other states do not award child custody but instead assign a conservatorship to parents. In short, no matter what terms a state uses to assign child custody, it is important to understand what the final child custody order means.
A final child custody order or order for visitation will clarify how the parents share legal and physical custody, or important decision-making responsibilities as well as care-taking responsibilities for the children. It is important for fathers to understand that, even if the arrangement set forth in a child custody order is not preferable, it may be possible to modify the order later. For example, if a father only has limited physical custody because he lives in another city or works extended hours, that father may be able to seek a modification if there is a significant change in circumstances concerning his job later. To be clear, the final child custody order is not necessarily the final document that will govern all parental relationships with the child until the child becomes an adult. Rather, the child custody order will represent what the court determines to be in the child’s best interest at that point in time. Situations can change as the child ages and each of the parents’ circumstances shift.
Any father who needs assistance with child custody should seek advice from a child custody lawyer in the appropriate state.
