50/50 Custody – Are Courts Biased Against Men?

50/50 Custody – Are Courts Biased Against Men?

Estimated Reading Time: 5 min read

Divorce courts are not biased against men in 50/50 custody situations. Instead, they are looking for a particular set of facts and circumstances that, in today’s society, seem to be easier to prove for most moms than for most dads. Society is changing, though, and that means that the courts will change (albeit at a slower pace).

In building a case for 50/50 custody, dads need to focus on (a) their contributions to specific parenting tasks, and (b) to their relationship with their children.

The goal is to provide tangible evidence to the judge that you are an indispensable part of your children’s day-to-day lives and to their continued well-being.

Here is what the courts are looking for when a parent asks for 50/50 custody:
  1. A deeply involved parent has a good chance of winning a request for 50/50 custody. Divorce courts are very willing to award 50/50 custody when both parents are deeply involved in their children’s lives. However, if one parent can show that they have clearly been the more involved parent, 50/50 custody is much less likely. Unfortunately, that less involved parent is often the dad. That is not a judgement; it is just how things often work out in most families.

    THE FIX: If it looks like your marriage is on the skids, and you have not been a super-involved father, now is the time to step it up. Your kids will be happy that you did … and so will you. You can always petition a court for 50/50 custody, at a later date, as long as you have evidence that there has been a material change in circumstances (meaning that you are now a much more involved father).

    Mom alienating your children against you? If your ex is standing in the way of you spending time with your children, this needs immediate attention by a lawyer. This might be what courts call “parental alienation”. Judges hate it when parents do this. Have an attorney create a strategy to gather evidence to prove that your ex is alienating your children against you. If you have a clean record (e.g., there is no history of abuse or out-of-control behavior by you), there is a good chance that the court will come down hard on your kids’ mom. Don’t try it, though, unless you feel you have a good chance to prove it.

  2. Divorce courts are not in the business of building up parent-child relationships. Judges don’t tend to make decisions in terms of how a particular custody schedule might promote and nurture the parent-children relationship. If the parent-children relationship is not already strong, judges often shift their focus to maintaining the status quo if that status quo seems to be providing for your children’s physical and emotional needs.

    THE FIX: Provide evidence of how the status quo is hurting your children, with specifics, and you will have a much better chance of winning 50/50 custody in court. Here are some questions that you need to be able to answer, with evidence, to win at 50/50 custody:

    • Will maintaining primary custody with your children’s mother lead to deterioration of your children’s bonds to you?
    • Are your children more in need of your special parenting talents now that they are older?
    • Is the primary parent bad-mouthing you and alienating the children from you? (Judges hate this).

  4. Most judges agree that 50/50 is the preferred custody option if the parents get along well. Unfortunately, that is not usually what the judges see. Parents who end up before a judge in court, due to a hotly contested custody battle, are often at each other’s throats. If there is obvious distrust, dislike, and/or animosity between the parents, your judge will be wary of sticking your kids in the middle of a bad situation.

    THE FIX: Provide evidence that you always go out of your way to be kind, patient, and accommodating to your children’s other parent. Show that you know how to compromise. Also, you will do better in court if you can demonstrate, with specificity, how your ex is the opposite of all of those things: unkind, impatient, not accommodating, and unwilling to compromise.

  5. Fairness has nothing to do with judicial decisions related to custody. “Best interest” is the standard. Fairness to the parents is never the criteria for how custody is decided, 50/50 or otherwise. The “best interest of the children” is the standard. We all know that “best interest of the children” is a subjective term (meaning that it is up to the individual judge’s discretion), but judges are required to back-up their decisions with the evidence that was presented to them in court.

    Here is what to do if you fear that a judge will find against you, in a 50%/50% custody case, due to the “best interest” standard:

    THE FIX: Provide specific evidence that there is a great risk that, if your children spend less than 50% of their time with you, their well-being will be sacrificed. Be prepared to answer these questions:

    • What important contributions, from you, will your children be missing if they spend less than 50% of their time with you? For example, what can only you provide? (e.g., better disciplinary techniques, an example of “how to be a good man”). Do you have special qualities to offer? (e.g., a patient personality, or a non-judgmental way of viewing other people)
    • How will your children’s lives change, for the worse, if they spend less than 50% of their time with you? For example, will their mother teach them stubbornness and poor conflict resolution skills, whereas you are an open and fair-minded person?

  7. Can your children handle living in two different homes? Some children have a very hard time navigating the herky-jerkiness of living in two separate homes. For example, kids on the spectrum, ADHD kids, kids with behavior disorders, and kids with anxiety disorders may do better having only one primary home. If this is the problem, you will want expert testimony (psychologist, social worker, therapist) that your child will do better with 50%/50% than spending the majority of their time with their mom.

    Spending time with both parents should feel natural and desired (to a certain extent) by your children. There should be nothing forced or extremely awkward. That is not to say that your children will always want to transfer between houses (just like they don’t always want to go to school in the morning), but that lack of desire should be in the realm of “normal whining and complaining” and not one that demonstrates true pain.

KEY TAKEAWAY: If a father is seeking 50/50 custody, and a mother is fighting against it, most divorce courts will not be automatically biased against that dad. Instead, 50/50 custody is actually appealing to judges because it makes them look impartial and like a fair-minded member of the judiciary. However, at the end of the day, the court’s job is always to make a custody decision, based on evidence, of the children’s best interest, which has nothing to with fairness to the parents.
By Kate Main, Mediation, Marketing & Research Assistant & Robin Graine, JD, CDFA


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