Fathers' Rights and Child Custody Law

Child custody arrangements based on the "best interests" of the children do not always guarantee a good result for those fathers seeking primary custody of their children.

It is hard to believe today, but in the 1800s common law jurisdictions almost always treated children as the property of the father following a divorce, and fathers would get custody of the children in almost every case. Fast forward to the twentieth century and you’ll find that most jurisdictions completely reversed the old pattern of paternal custody with the development of psychological sciences that set forth the "tender years" doctrine that held that unless extraordinary circumstances were present to the contrary, the custody of young children should always be given to their mothers.

Obviously, neither mandate was entirely correct in all situations, and since both models were fundamentally flawed, alternative custody arrangements arose in the form of modern rulings that are supposed to be based on the "best interests" of the children. In practice, the “best interests" usually include the presumption that the parent who was the primary household caregiver during a marriage should be awarded primary custody following a divorce. The courts began employing the “best interests” doctrine here in the United States over a decade ago, and resulted in the rise of the fathers' rights movement to address the problem of fathers not being given equal treatment in child custody litigation.

The fathers' rights movement focused on the belief that the traditional division of parental roles in a marriage do not translate that a father should not be considered as a custodian following divorce. Instead, the fathers’ rights movement put forth that in normal households, the children best interests are served by being in the care of both parents equally, and there should be a legal presumption of joint physical custody and equal parenting duties following a divorce. Fathers' rights groups have also pointed to the many research studies that have shown that children who grow up without a father in the home often experience a wide variety of negative behavioral and educational consequences later on in life. Fathers’ advocates maintain that ending the presumption of maternal custody in court will create a legal environment where both the parents and children are treated more fairly and equally.

While some critics of the fathers' rights movement have suggested that the goal of the movement is not really gaining equal treatment, but more of a ploy to deliver an advantage to fathers in court who are looking for more favorable financial outcomes. The huge difference in viewpoints shows just how wide the gulf between ex-spouses can get when it comes to the difficult issues surrounding child custody. The situation shows that the expenses, emotions and temperatures can all run very high in a child custody dispute, and that fathers seeking custody should try to obtain the best legal representation they can possibly find before they get to court.