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There’s a common misconception that dads are discriminated against in custody battles on account of their gender. The truth is that dads and mothers share the same basic rights in a custody battle, and it is the circumstances of their relationship and the roles they play in their child’s life that determine how custody is awarded. Since the 80s and 90s, the courts have shifted tremendously towards awarding shared or joint custody as often as possible, wherever an agreement can be made between both parents.

However, in cases where joint custody isn’t possible, it is true that mothers predominantly win custody battles. Considering both joint and sole custody cases, only about 8 percent of dads living with their children are custodial dads, compared to 25 percent of mothers. Moreover, the figures for dads with sole custody have remained largely stagnant over the last few years, with the biggest statistical shifts occurring in the number and growth of joint custody agreements.

Parents Have Equal Rights

Biological parents, in particular, have the same rights when it comes to the general custody of their children. Moms and dads rights diverge on the subject of pregnancy – but not on custody. Both biological parents have a right to seek custody or child visitation, regardless of whether they were married. Dads also share the same rights in child custody cases as mothers in the case of divorce.

The main reasons dads gain custody less often than mothers do is because many don’t fight for it (perhaps because they assume they will lose), and because if forced to award custody between one parent and the other, the courts will choose the parent the child has had the most involvement with (i.e., the primary caretaker).

If you take the proper approach in a custody battle, you can win the chance to continue to play a major role in your child’s life. Most courts want this – they recognize that even when split between two households, children growing up in joint custody agreements tend to do much better than children living with only one parent.

Establishing Paternity in Unmarried Custody Battles

If you are not married to the child’s mother, you will usually need an acknowledgment of paternity for the custody court. This is either an agreement signed with the child’s mother confirming that you are the dad or, in cases of disputed paternity, a legal process culminating in a DNA test to verify your identity as the child’s biological parent. The way custody laws are currently written, biological parents are far more likely to gain custody than unmarried non-biological dads.

If you helped raise the child while living with the mother but were not the child’s biological dad and did not adopt them, you will have a tough time fighting for any custody rights. However, if you are the child’s biological dad, your basic dads rights to custody are the same as the mother’s. But there are other factors involved that may sway the courts to favor one parent over the other.

How Child Custody Is Awarded

The primary factor in any child custody battle is the best interest of the child. Most other factors revolve around determining what outcome is best suited to the child’s development and wellbeing. Because of this, most courts will encourage parents to come to an amicable agreement regarding custody, visitation, and child support to ensure that the child can benefit from the involvement of both parents, rather than rooting solely for one parent or the other.

Some factors cause the courts to rule out joint custody when neither parent can agree. These factors include signs of neglect or abusive behavior, unsuitability as a parent (incapacity or incompetence), incarceration, substance abuse, mental instability, or sudden relocation (away from the child’s life, i.e., friends, school, relatives). When these factors are present in a custody case, custody is usually awarded to the primary caregiver.

Defining a Primary Caregiver

Legally speaking, in a custody battle, the primary caregiver is the person most directly responsible for dependent care, be they a child or adult. Primary caregivers:

    • Take the child to school and the doctor.
    • Show up to parent-teacher conferences.
    • They are called by teachers when something is wrong at school.
    • Know their child’s hobbies and interests.
    • Arrange for playdates.
    • And spend the most time with their child.

The ability for a parent to financially provide for their child is not as important as their ability to be an attentive and present parent, given the availability of both child support and government assistance. Because many families are still modeled around common gender roles (where the mother is the homemaker and the dad is the main breadwinner), mothers tend to be identified as the primary caregiver in cases where sole custody must be considered. Even in joint custody cases, the primary caregiver will usually enjoy greater custody rights in the absence of a parenting plan or amicable agreement after court mediation.

Proving Parental Involvement

If you want to fight for your dads rights as a custodial parent, you need to prove that your presence in your child’s life is in their best interest. To that end, your primary goal should be to prove your involvement in your child’s life. You can do this through:

    • Chat logs and phone call logs
    • Involvement at school and extracurricular activities
    • Birthday cards
    • Pictures and videos together
    • Witnesses
    • Schedules
    • Financial and medical records (tuition and hospital bills)
    • And more

Being there for your child is often the most important step towards gaining custodial rights. But it doesn’t stop there.

Protecting Dads Rights in Divorce and Child Custody

While custody battles can get heated, protecting your dads rights should remain at the forefront of your mind each and every day, and keep reminding yourself to:

    • Keep calm
    • Stay honest
    • Remember your top priority

At some point, you may want to consider hiring professional help to advise you throughout the custody case. An experienced family law attorney can help you avoid common missteps and make the strongest case in your name.

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