Do Fathers Have A Harder Time Gaining Custody In Divorce?

Historically, fathers had a more difficult time obtaining custody of minor children. This was because the majority of states followed the tender years doctrine. The tender years doctrine provided that children of tender years (around six years old or younger) had to be with their mother when the parents divorced. However, with the adoption of the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) in all 50 states, the law has changed. Now, the primary concern when awarding parents custody is what is in your child’s best interest.

So, the question arises whether today, do fathers have a harder time gaining custody of minor children? The answer is: it depends on your family’s circumstances.

While Virginia law presumes that joint custody is in the best interests of your child, children need stability and should not be passed around from parent to parent day in and day out. For this reason, one parent will generally be deemed the primary custodial parent and the other will be the non-custodial parent. The child will live with the custodial parent while the non-custodial parent will have reasonable visitation rights (nights, weekends, etc.). Of course, the amount of visitation can be greatly reduced or eliminated altogether if the non-custodial parent presents a danger to the child or lives a lifestyle that is detrimental to the child’s health and welfare.

When deciding what is in your child’s best interests regarding which parent will be the primary custodial parent, courts look at a variety of factors. Typically, no one factor is dispositive, but the judge will consider:

  • The age of your child, and his or her physical and mental condition(s);
  • Your age, physical and mental condition(s) as well as the other parent’s;
  • The present relationship you and your child’s other parent have formed with your child, and your abilities to meet the emotional and physical needs of your child;
  • The particular needs of your child, such as other important relationships in your child’s life (siblings, grandparents, friends, etc.);
  • The role you and your child’s other parent have played in your child’s life, in addition to the role you will play in the future;
  • How likely you are to foster the relationship your child has with their other parent, including any history of refusing your child access to their other parent without reason;
  • Your willingness and ability to maintain a close and continuing relationship with your child, as well as that of your child’s other parent;
  • Your willingness and ability to resolve disputes with your child’s other parent regarding matters that affect your child;
  • Your child’s custody preference, if the court decides that your child is mature enough to understand and express their preference;
  • Any history of sexual or physical abuse in the family; and
  • Any other factor the court deems necessary and proper depending on the unique circumstances of your family situation.

While modern families operate in a multitude of different ways, many fathers still work full-time schedules and serve as the primary bread winner for the family. Some mothers work part-time or not at all to stay at home with the children and take care of the house. If these circumstances do not change following a divorce or separation, then fathers may have a more difficult time gaining custody of their child because the mother will be in a better position to take care of their child’s day-to-day needs.

However, it very well may be that you and your child’s other parent both work full-time jobs, especially after a divorce or separation when both of you need to make a living. In this situation, you will be on equal footing with your child’s other parent when it comes to making the custody decision, provide that both parents have taken on similar roles in the child’s life.

No matter what your family situation, fathers should not fall victim to archaic gender stereotypes and be dissuaded from seeking custody of their child if they believe it is in the child’s best interests.

If you are seeking custody of your child, you should speak with a qualified family law attorney at the DiPietro Family Law Group. Our attorneys have decades of experience handling custody cases and all other family law maters. We can review the facts of your specific situation and will fight for your rights and the outcome you desire. Call us today to schedule a consultation at (703) 370-5555 or visit us online.

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