Until recently, it was thought that minor children should always live with the mother after a divorce. In recent years, the courts have started giving fathers an equal chance for primary custody if both parents are equally fit. A fit parent not only provides for the children, but also does not hinder visitation, phone calls and emails to the other parent.
Choosing a Primary Parent
The court looks at a number of criteria when determining who the primary residential parent will be. These criteria may include who spends the most time with the children, who takes the children to the doctors' appointments and who is more likely to allow unhindered visitation and communication among other things. Finances may be looked at, but because of child support and spousal support, finances are not that important in the scheme of things, unless a parent absolutely cannot properly provide for the minor children.
Primary and Secondary Custody
A father has as much right to primary custody as the mother, though if a child is very young, the court will almost always choose the mother. If the mother is psychologically incapacitated (whether through drugs, alcohol or a medical condition), the father will probably get custody, even of a newborn.
Secondary custody affords the father the right to have reasonable visitation with his children. If the parties cannot agree on a visitation schedule, the court will create a visitation schedule for the parties. The visitation schedule usually consists of every other weekend (Friday night to Sunday evening), one overnight during the week, rotating holidays and split school vacations.
If the parents cannot decide on primary and secondary custody, an alternative may be to have rotating custody. In the past, courts were reluctant to order rotating custody, thinking it was not in the best interests of the minor children. If the parents live relatively close to each other, especially in the same school district, and request rotating custody, the courts will generally allow it. Because some courts may still be reluctant to order rotating custody on their own, the parties should request rotating custody.
General Rights of the Father in All Custody Situations
A father who is awarded secondary custody or rotating custody has many rights to his children. He has the right to pick them up at school. The father's name should be on the pick up card. In the event that the mother cannot pick the children up, the school should be instructed to contact the father. The father has rights to all of the children's medical records and school report cards. Copies of medical records and school records should be made and forwarded to the father upon the mother's receipt of same.
Rights of the Father in Secondary Custody Situations
A father has specific rights when he has secondary custody, and these rights should not be assumed. They should be written into any settlement agreement of final judgment of dissolution of marriage. The father has the rights outlined in general rights, and he also has the first right of refusal. If the mother needs to hire a baby sitter for more than a set time---usually four hours---the father should be given the first right of refusal. This means that the mother must contact the father and ask him if he would like the minor children for the time the mother needs a sitter. The father, if free, can take the children without affecting any other timesharing that was ordered by the court.
If, after a period of time, the father has the children at least half of the year, he has the right to petition the court for a modification of child support. The modification reflects the additional time the child spends with the father.