Father’s Rights in Child Custody Disputes
Most fathers feel like they’re fighting an up-hill battle when it comes to gaining custody or visitation of their children. Courts, laws, and society have traditionally held the view that a child’s mother is presumed to be the most suitable parent for custody. However, with society’s changing view on gender roles and child-rearing, it is now more widely accepted in court, laws, and society that a father should play an essential role in child-rearing. Now, courts making child visitation decisions presume that both parents should be involved, unless there is evidence to the contrary. Below is a summary of steps that should be taken to preserve a father’s rights.
Establish PaternityOne glaring difference between fathers and mothers, specifically as it relates to child custody disputes, is that fathers who were not married to the mother when the child is born must legally establish paternity in order to have legal rights as a father. In most circumstances, establishing paternity entails both parents signing and filing an acknowledgment of paternity with the appropriate state agency or court. In disputed paternity cases, however, DNA testing can be involved. Once paternity is established—either by agreement or court order—the child’s father is held accountable for his share of support and responsibility for the child, and can obtain certain custody and visitation rights.
Petition for Child Custody or VisitationCustody and visitation are not the same things. Custody is the right to make decisions for a child. The two custody options are sole (primary) custody and joint custody—a parent with sole custody has sole decision-making power for the child, whereas parents with joint custody are required to make decisions for the child jointly. For more information on custody, see our blog on Custody Arrangements. Visitation, on the other hand, is a request to spend time with child on a regular, scheduled basis.
The AgreementPrior to court proceedings, it is advised that parents attempt to negotiate a parenting agreement both can live with. A parenting agreement can include terms outlining which parent will have primary custody, the visitation schedule, and which parent will make important decisions for the child concerning education, health care, religion, etc. If parents cannot reach an agreement, the court will issue an order determining custody and visitation.
Addressing Issues with Custody and VisitationIt is rare for fathers to win sole custody of a child already being raised by his or her mother. To win sole custody, a father has to show that the mother is unfit to raise the child and/or that he has been the child’s primary caregiver. While the court may issue a final decree awarding sole custody to the child’s mother, a father can still petition the court to modify the final decree and award the father custody at a later date, if it is determined to be in the child’s best interests.
If the child’s mother is not honoring the parenting agreement or order, the first step is to try to address the issues(s) amicably. If that is not possible, all violations of the agreement or order need to be documented, so they can be brought to the court’s attention when asking the court to enforce the parenting agreement or order. Notably, repeated violations of a custody order can be a legally valid reason for modifying custody.
The process of obtaining custody or visitation as a father can be a long and complex process and often feels like an uphill battle. If you are need help obtaining custody or visitation of your child, a family law attorney can advise and assist you. Find an experienced attorney by quickly posting a short summary of your legal needs on Legal Services Link, and let the perfect attorney come to you!
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