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Under the California Family Code, fathers are supposed to be on equal footing with mothers regarding the custody and visitation of children after a divorce. But, as any experienced practitioner in this area knows, men are at a significant disadvantage in Family Court when issues of custody and visitation are decided. In a divorce, fathers must convince the Court of their worthiness to have even a significant parental role, much less equal time with their children. On the other hand, mothers, for the most part, are presumed to be good parents. This presumption is based on the widely accepted belief that of the two parents, it is the mother who is inherently the "nurturer." Added to this stereotype is the cultural bias reflected in the "tender years" doctrine that children in their first few years need their mothers' care more than parenting from their fathers. Though unfair, and despite the fact that gender-based assumptions are often misguided, a mother's advantage respecting custody and visitation issues is a fact of life. However, ever so slowly, the situation is changing.
The shift toward equitable timesharing of the children is driven by several factors—most notably, changing gender roles and the predominance of two working-parent households. When both parents work, parents usually have about the same amount of time away from work to act as hands-on parents, and fathers—by choice or necessity—have taken a more active role in raising their children. In Family Court, fathers are increasingly making the choice to seek more custodial time. Even fathers who may have been primarily the "providers" based on the agreed upon roles during marriage, are rearranging their priorities during and after divorce and becoming more involved in raising their children. As gender-based parenting norms have changed, many fathers no longer feel bound by the constraints of being the "breadwinner." They realize that being a father is more than providing a paycheck.
Empirical data shows that children are more successful when both parents are involved in their upbringing—even after divorce. Often, parents bring different skill sets to a child's life. Not surprisingly, the data shows that when a father does not get substantial time with his children after divorce, he will be edged out, little by little, as a center of gravity in the children's lives; their activities grow and revolve more and more around the parent with primary custody. In light of the knowledge that it is in the children's best interest for both parents to remain engaged in the rearing of their children, some Family Court Judges are even granting fathers primary physical custody.
Below are five tips to help fathers in custody cases:
1. Get involved and stay involved in the child's life: The Family Court judge will make a custody order based heavily on which parent is most responsible for caring for the child's needs. If you are not involved, get involved. The past does not determine the future; tomorrow is a new day. No matter what role you played during the marriage—whether by choice or default—divorce is a big change that affords less involved parents the opportunity to take a more active role in their children's lives. Active fathers need to remain engaged, which can be very difficult in the midst of the emotional upheaval that accompanies most divorces. Fathers should feed and bathe younger children. They should take their children to their doctor and dental appointments. Fathers should monitor school performance, attend parent-teacher conferences, learn teachers' names, help with homework and accompany their children to extra-curricular activities. They should take age-appropriate parenting classes; if the class reinforces what a father already knows, he gains confidence as well as the approval of the Family Court.
2. Take corrective action on any "character flaw": None of us is perfect. If there are drug, alcohol or anger management issues, fathers should take corrective action immediately. The Family Court's primary concern is the health, safety and welfare of the children. Chemical dependency and anger management issues are obvious red flags. You can be sure the other parent will bring these "character flaws" to the Court's attention. Fathers should take advantage of the many treatment programs to address these issues.
3. Don't produce incriminating evidence: In Family Court, there are many disputes that come down to "he said, she said" accusations. Without concrete evidence, the Court often dismisses these claims. But parties in a divorce sometimes impulsively send damaging e-mails, voice mails, photographs, or text messages to each other or third parties connected to the divorce case, which, of course end up in front of the Family Court judge. Often, especially with younger parents, there may be incriminating photographs or writings on a parent's social media account—even material not placed there by the parent. Objective evidence has the power to sway a judge on a critical question. It is never a good idea to send an e-mail or a text, leave a voicemail, or post a photograph you would not want published on the front page of a newspaper.
4. Don't lose self-control in public: The divorce process is stressful and an "ex" is in a unique position to push a former partner's buttons. However it is imperative to maintain self-control in front of Court, the Family Court mediator, teachers and neighbors. Along with not creating damaging "objective" evidence, in a close fight to determine fitness to parent, an angry public outburst can tip the scales. Courts equate a lack of self-control with poor judgment, which raises a parental fitness issue. If you are figuratively "losing it," get counseling.
5. Don't disparage the other parent: Family Code section 3020 states that "the Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents separated or dissolved their marriage…" Judges look favorably on the parent most able to share and promote a relationship with the other parent. Each parent brings different value and experience to the child's development. The judge is more likely to lean in favor of the parent most able to recognize the value of the other parent in the child's life. A parent who is constantly disparaging his or her ex-spouse cannot be counted on to promote a healthy co-parenting relationship with the other parent. Tearing the other parent down in front of a child is devastating to that child. During and after a divorce, a parent must avoid vilifying the other parent—or risk damaging the child and incurring the wrath of the Court.
Craig Candelore is an attorney at Men's Legal Center, Family Law Advocates®, which handles complex family cases in San Diego County and southern California. Candelore has been a pioneer in gender equality in family court. Although litigation is always an option, he believes that a reasonable settlement that both sides can live with, rather than litigation, is the best course of action for most clients. Craig Candelore graduated from the United States Military Academy (West Point), University of Southern California Master's program in System's Management and San Diego School of Law. Please connect with Men's Legal Center on Facebook at http://www.facebook.com/ and learn more about our law firm and Craig Candelore at www.menslegal.com.