If you are going through a divorce and have children, the court will ultimately decide whether you and your spouse will share physical custody of your children and in what manner. State laws vary, but courts typically do not award greater physical custody, also called parenting time, to a child’s mother simply because she is the mother. Instead, a mother must show the court that it is in the best interests of her children to spend more time with her.
Tender Years Doctrine
In previous decades, courts frequently awarded custody to mothers when their children were young. This was called the tender years doctrine and was based on the theory that young children, or children of tender years, needed the care of their mothers far more than the care of their fathers. However, many states have now passed laws prohibiting judges from making decisions based solely on the parent's gender. Instead, courts may consider which parent is the "primary caregiver" as one of many factors used to determine a custody arrangement that is in the child's best interests. Courts are likely to give physical custody to the child's primary caregiver since separating the child from that care is typically not in the child's best interests. If you are your child's primary caregiver, it may benefit you to point this out to the court and provide proof of how much care you give your child.
Understand the Law
To present your custody case to a judge in the best possible manner, you must understand your state’s laws as well as any local court rules. For example, many courts have default custody arrangements they use in every case unless the family’s situation makes the default arrangement unwise. If you like the default arrangement, typically a fairly even split of custody and parenting time, you can argue to use it; if you do not like it, you may have to convince the judge that your atypical situation requires a customized plan. Typically, state laws require courts to consider a set of factors to determine what custody and parenting time arrangement is in your child’s best interests. Look at your state’s factors to determine where your best arguments lie. If, for example, one factor considers which parent has been the child’s primary caregiver, you may wish to emphasize your role as caregiver. Since the court’s ultimate goal is an arrangement in your child’s best interests, you will benefit from connecting your arguments to your child’s best interests rather than your own personal interests or convenience.
Records and Proof
Even if you have winning arguments about why the court should give you a greater share of custody, you’ll find it very difficult to convince a judge without proof. Records can show the frequency of your visits or calls to your children, how well your child is adjusting to a new environment and any odd behavior by your spouse. You could keep a journal of these interactions or a special file for documents like school reports. Even if these records cannot be admitted at your court hearing, they will help you remember specific events, especially over a period of time. For example, it is not enough to simply tell the judge that your spouse’s apartment is unsafe for a young child. You must prove such statements through evidence like third-party testimony, photographs or documents. However, it is not a good idea to try to coach your children about what to say to the court. Though the judge may ask your children where they want to live, it can be a strong mark against you if the judge discovers they have been coached.
A judge is unlikely to grant custody or parenting time to a parent who seems unfit or unable to provide an environment that is in the child’s best interests. Consequently, you must ensure you provide a beneficial, safe and healthy environment for your child. You must also avoid talking badly about your spouse in front of the children since this may show the judge that you are unwilling to work with your spouse. Generally, it is not a good idea to begin dating someone else while you are in the divorce process—at least, not in front of the children—because this can appear to provide an unstable environment. When you spend time with someone else while you are supposed to be spending time with your children, a judge may think you do not actually want parenting time.