Here are some additional questions that people often have about the child custody process:
Is it more difficult for fathers to get custody?
At one point in time, it was extremely difficult for fathers to get a fair shake in the custody situation. Thankfully, things have improved. Although there are still some hidden prejudices out there, most judges now recognize that fathers can be every bit as nurturing as mothers and provide just as good of an environment for kids. States also have laws officially barring discrimination against a parent based on gender. So there’s no reason that fathers have any less of a chance at winning custody than mothers.
Of course, hidden prejudices still exist, especially among the general public. One man writes, “I’m a part-time male physician who served as the primary caretaker for my two daughters. During my subsequent divorce from their mother, I was directly asked, ‘How can you take care of the girls while you are working?'” (Answer: the same way any working mother does; Letter to USA Today by Mark Shumate, 7-23-2012, p. 8A) Prejudice against men being involved with children is among the most universal and potent prejudices that exist in developed countries today. “Although I have experienced monumental strides being made by the legal system concerning father equality,” say Bernard Clair, a prominent Manhattan divorce attorney, “there remains a lingering whiff of prejudice even good dads in many contested custody cases.” (Weller, 2015) So you should be prepared to encounter it.
Is it better for children to be in the custody of their mothers or fathers?
There are few discernible differences between the adjustment of children whose fathers had custody following a divorce and those whose mothers had custody. In fact, on the few measures where differences did exist, children in father-custody situations did slightly better than those in maternal custody, but these differences disappeared once parental income was controlled for. (Downey & Powell, 1995)
Other studies have found that children living with fathers experience a greater sense of well-being (Hilton & Devall, 1998), and that a child’s welfare improves when living with fathers as opposed to when living with mothers. (Biller & Kimpton, 1997; Farrell, 2001) None of this should be misconstrued to prejudice mothers. A variety of factors play a role in this, such as the fact that children living with fathers have stronger ties to the non-custodial parent because mothers tend to stay more connected (Clarke-Stewart & Hayward, 1996), or that the more time kids spend with fathers, the more parental conflict decreases. But it does show men are just as adapt at raising children as women.
So contrary to the social stereotypes, dad can be just as nurturing and caring towards the kids as mom, and kids thrive equally as well whether they live with their father or mother after a divorce. It’s the quality of care – not the sex of the parent – that matters to a child’s welfare.
Is it better for child custody to be awarded to the same sex-parent?
Clark-Stewart & Hayward, (1996) examine this issue and found no support for the idea that children do better living with a same gender parent (Girls with mom, boys with dad). The only finding was that their research showed “strong and consistent” results that both boys and girls did better when raised by fathers. Child development research even shows the gender-opposite parent may play an even more pronounced role in child welfare than the same-sex parent. So the decision on who gets custody should not be based on the sex of the child or the parent. (Schnayer & Orr, 1989)
My husband earns more than me. Does this give him a better chance of winning custody?
Courts generally acknowledge that a high income doesn’t always make a person a better parent or provider, and they’ll go to great lengths to try to be fair to both parties, regardless of their earnings history or earning potential. If one parent is much better-off than the other, they’ll usually try to make up for this through child support, but won’t use it to determine custody.
My career is demanding. Does this hurt my chances at custody?
Courts are accustomed to dealing with parents who have demanding careers, and recognize that this doesn’t automatically preclude them from being good parents. However, parents should also be honest with themselves about how much their jobs might interfere with parenting duties. One thing all kids need is time, and there’s no way to substitute for this. If you can’t give your kids the time they need because work gets in the way, you’re not going to be the parent they need on a consistent basis.
I’m not actually married to my partner…do I still have the same custody rights?
Yes. Child custody rights and procedures are the same whether couples had been married, cohabiting, or single. Due to the skyrocketing amount of out-of-wedlock births, divorce lawyers are seeing an increase in child custody and visitation cases involving non-married individuals. These cases can sometimes be more bitter and contested, especially if they involve people who barely knew each other when the child was conceived. Since there isn’t the same “glue” that at one time connected each parent, child custody battles can become more contentious.
What about surrogacy agreements or embryo adoptions?
Though the laws can vary from state to state, once a gestational agreement is legally validated, the intended parents are considered the legal guardians of the child, regardless of biology. The parents’ names will be put on the birth certificate, and will be recognized as that child’s parents, and so custody typically works precisely the same as it would for biological children.