Parental Rights in Modern-Day Divorce

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Guest Post by Jeremy Salvucci


Issues of custody and parental rights are almost invariably the most important, emotional, and high-stakes components of divorce proceedings. Money can be lost or spent, then regained, and real estate and vehicles can be replaced, but there is no substitute for access to one’s children. This crucial portion of divorce often concludes with the naming of a Primary Custodial Parent. The parent to whom this vague moniker is endowed gains not only the right to select where the child or children shall reside long term, but also becomes, to some degree, the children’s gatekeeper. The parent awarded custody retains the right to make important decisions regarding the children’s schooling, medical coverage, religious practice, and more, while also mediating the degree to which the other parent may spend time with them. In other words, the naming of the primary custodial parent may be the most important decision reached during the handling of your divorce.

Traditionally, the decision as to how primary custody is established is based on parenting patterns and history in the years leading up to the decision to divorce. While some marriages involve a true 50-50 split in both parenting and employment, this is very rarely the case in practice. Oftentimes, while both parents cherish their time with their children, one spends more time at work in order to provide financially for the family, while the other is responsible for day-to-day parenting work, such as preparing meals, transporting children to and from school and other events, scheduling doctors’ visits, etc. Judges, as a rule, award primary custody to whichever parent historically spends the most time attending to the children’s day-to-day needs. By default, this is usually the parent who has the most free time outside of work. For instance, if one parent works full time while the other works part time, the parent who works part time will generally be responsible more often for the children’s transportation, hygiene, education, and other basic needs. Therefore, this parent is most likely to be named the primary custodial parent by a judge during divorce.

As you have likely already guessed, which parent plays the role of breadwinner and which plays the role of caregiver is not equally distributed between sexes. Historically, in heterosexual partnerships, it is far more likely that the female partner will find herself providing care and transportation for children, while the male partner is more likely to spend more time at the workplace in order to earn capital to support the family’s continued existence. This is no accident, as until recently, archaic gender roles were all but pervasive in American society. While this is now changing rapidly, and no one template applies to any family unit, many parents still find themselves, by no fault of their own, in the roles historically applied to their sex when it comes to employment and parenting. For this reason, it remains true to this day that mothers, far more often than fathers, are given primary custody of their children in the case of divorce. For many divorcing couples, this does not pose a major issue, as the divorce is amicable, and regardless of who is awarded primary custody, both parents remain collaborative in both housing the children and making important decisions regarding their future. In perhaps just as many divorces, however, the situation is less than amicable, and the parent (usually the father) who is not awarded primary custody, finds themselves stripped of many of the legal rights they depend on to remain an effective and loving parent to their child or children.

As laws vary state by state, judge’s decisions vary family by family, and joint custody is awarded spottily, at best, fathers cannot rely on these factors to ensure their continued involvement in their children’s lives. Despite evolving gender roles and the increased prevalence of non-traditional parenting structures, the vast majority of non-amicable divorce proceedings still result in the mother being selected as the primary custodian. For this reason, it is just as important as ever to take the necessary steps to ensure that you will have, at the very least, rights appropriate to the level of your involvement prior to the disuniting of your family when it comes to housing your children. The absolute best way to do this is through education. By learning the applicable laws, precedents, and trends in your state as they apply to your specific situation, you can avoid being blindsided in court and losing access to the most important people in your life. Additionally, it is crucial to enlist the aid of a lawyer who specializes in, or at least has a wealth of experience with, paternal rights as they relate to divorce.

If you feel lost or in the dark when it comes to these sorts of legal issues, a good place to start is the book They’re Your Kids Too: The Single Father’s Guide to Defending Your Fatherhood in a Broken Family Law System, by father’s rights lawyer and founder Anne P. Mitchell. This comprehensive and easy-reading volume outlines the relevant information and necessary action to ensure you are as equipped as possible to confront issues of custody in even the messiest of divorce situations. From there, you will be educated enough to seek appropriate representation and begin the process of securing your rights as a parent.

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