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Published On: Tue, Oct 18th, 2016

Equal Residential Custody: A Modern Divorce Solution

For most of America’s history, fathers were by law seen to own their children the way they would own any property. If a couple with children divorced, it was the father who obtained full custody by default. By the beginning of the 20th century, however, the position of the law had begun to change.

Custody and divorce battles around the country began to be governed by a principle that came to be known as the Tender Years doctrine. It positioned mothers as unquestionably superior to fathers when it came to an ability to provide children with the nurturing that they needed. There was usually no legal battle for primary custody, because fathers were considered naturally ill-equipped for the demands of involved parenthood. Generations of deserving and capable fathers, as a result, simply could not hope to be closely involved in raising their children, if their marriages broke down despite having speaking with their spouse about online marriage counseling.

The tide has begun to change again

The Tender Years doctrine came under challenge in the 70s for the reason that it discriminated against fathers who were interested in an engaged parenting role. Many of the experts involved in the change had lived with divorced parents themselves, and possessed first-hand understanding of the frequent unfairness caused by rigid legal structures favoring one parent over another.

The result was that most states in the country took concrete steps towards establishing gender-neutral custody arrangements. The state of Mississippi was one of these change-prone areas. While the doctrine still does hold some sway in this state, it is no longer as powerful as once was.

Today, fathers in states such as Mississippi who hope for a fair hearing, can take hope. In this state, as in many others like it, sole custody is only handed to mothers when a case is uncontested. In contested custody hearings, fathers win 50% of the time.

gavel court scales justice ruling

photo via Pixabay user Succo

Fathers stand a chance when they are involved

Judges consider fathers for joint custody when they have demonstrated engagement in their parental responsibilities. A father who has spent years providing primary care and emotional support, is considered eligible for primary custody. This means that fathers who perform in the traditional role of providing financial support alone, are penalized. While it may be unfair, fathers today would do well to move away from a traditional male role.

Just as couples may find prenuptial agreements in anticipation of separation, it could be an idea for parents to put in time with their children, to prepare for the possibility of a custody battle one day. It can help to consult a top divorce lawyer about your options long before divorce is even a possibility. Preparation in advance is important.

It is important to adopt reasonable behavior

The presumption in law is that children are best served when they have a steady, meaningful relationship with both parents. Courts especially pay attention to the question of how each parent attempts to foster a healthy relationship between the child and the other parent. A parent who is known to attempt to embitter the child’s relationship with the other parent is usually considered less than fit for sole custody.

To a father hoping to gain custody, evidence of long-standing respectful behavior towards the other parent can be important. The trend in custody rulings today does lean towards gender-neutrality. Nevertheless, fathers do need to work hard to prove suitability.

Unwed fathers have a chance, too

It surprises many fathers to learn that the law does not view the rights of unmarried parents any differently from parents who are wed. The same rules apply, however. The more involved the father, the better the chances of their winning custody. It comes down to proving in court that one is a highly positive influence in the child’s life.

One only gets one chance

While equality is a recognizable governing principle in custody rulings today, mothers do get precedence by default. Judges also care greatly to give the children of divorced parents a stable home environment to grow up in. This usually means that once a primary custody arrangement is worked out in favor of the mother, judges will rarely consider disruptive amendments.

It’s important for fathers to go in prepared for their best shot the first time around. A competent local lawyer with specific custody experience can be invaluable.

Guest Author :

Bethany Hawkins is a student who has big plans to become a lawyer. She recently did work experience in a law office and was able to learn so much. This, along with her intense research of the laws, enable her to write insightful articles which inspire her and, she hopes, help others.

About the Author

- Outside contributors to the Dispatch are always welcome to offer their unique voices, contradictory opinions or presentation of information not included on the site.

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