By Rachel Alexander
Disclaimer: We cannot respond to every email, because we already receive hundreds regularly on this subject, but we do read them all. Although this guide is geared to fathers, who are usually the most disadvantaged here, it can also be used to some extent by mothers who have been disadvantaged by the system or who are just looking for some guidance. This guide is based on mostly anecdotal evidence from attorneys and others who have gone through the family court system, and should not be construed as legal advice. (Reprinted from 2006). If you are a family law attorney or organization interested in advertising on this page, please contact us.
“The love of money is the root of all evil”
So you have a child with a soon-to-be ex-girlfriend or ex-wife, and are wondering what is going to happen to your children. The first thing you need to be aware of is this: The laws and family court system are not set up fairly towards fathers. The laws are set up to award custody to the parent who has had the most involvement so far raising the child, which means the parent who has worked the least – this is virtually always the mother. If you consult a family law attorney, they will tell you the same thing. This usually essentially means that the mother will receive custody of the child, and since child support is mandatory, that you will be paying several hundred dollars in child support to her each month. Now does this make sense? It only makes sense in the past, when you were still together as a couple – in a typical relationship, the mother probably worked less because she stayed at home more with the children or had a less demanding job, therefore it made sense at that time that she was with the children the majority of the time.
But after you have both split up, and she no longer has the option of working less hours, and in fact must get a job (the courts usually require single mothers to obtain full-time jobs) that will most likely pay less than yours, why should she still be seen as more fit to take care of the children? If she is working full-time (or should be, since she is now single which means she has to provide for herself without your financial assistance unless she is getting alimony), and making less money than you, how does that qualify her as a better parent than you? You have probably developed a close bond with your children too over the years of their lives. If your ex is working full-time, she won’t be able to spend any more time with the child than you if you are working full-time. You have relatives just like her and can find babysitters just as easily to help take care of the children.
The law doesn’t care whether she cheated on you, or whether she has started a new job that pays better than yours, whether she has severed your parental rights, and most of the time, whether or not she has a new boyfriend or husband who is providing for her – you are still required to pay her child support. And even if she refuses child support from you, which is very unlikely since society has trained women to think they are entitled to child support, the judge and child support social workers may very well try to convince her that she needs it! And she can always change her mind anytime down the road – generally up until the children are adults. Why should she turn down hundreds of dollars of free money per month that has the additional benefit of hurting someone she probably hates?
If you believe that you are the better parent, you need to read this guide and find out everything you need to know in order to have the best chance at obtaining primary custody (by “primary custody” I mean the children live with you more than 50% of the time, and unless there is a great disparity in your incomes, you will not be required to pay your ex child support). If you choose not to get primary custody of your child, not only are you in for a lifetime of emotional headaches but a lot of child support – which you will find does not all get spent on your child. It is almost impossible to get an accounting required of the money – only in extreme circumstances like repeated, provable, obvious drug abuse by the custodial parent will the court require that custodial parent to track what they spend their child support income on. Allegations mean nothing in court. Unless you have solid evidence that your ex is a drug addict or beating your children, the court does not care and will not do anything. The burden is on you to prove otherwise, since the judges and the law prefer to keep children with their mothers.
Before you read this entire book, it needs to be said upfront that trying to obtain primary custody of your child is an uphill battle if you are a father; you have very little chance of success. Even if you research this issue thoroughly, and can afford a reputable, aggressive, expert attorney, you still have a slim chance at winning unless one of few things occurs in your favor, which will be discussed in detail later. These include things like obtaining solid evidence that your ex is a drug or alcohol abuser, solid proof (such as pictures of wounds or scars) that your ex is beating or sexually abusing your child, and your ex moving out of state for a flimsy reason such as joining a religious cult. Things you might expect the court to care about are rarely enough to prompt a change in primary custody, such as whether your ex is on welfare or that she puts your child in daycare excessively.But it is worth reading this book just to find out the extent of what you are up against and to understand how the family court system works. After all, it is going to be a part of your life for years until your children are adults. You will receive letter after letter in the mail from the court and child support social workers, and so it will be useful to understand what all that paperwork really means.
Additionally, it is worth reading this book to raise awareness. Everyone you pass this book along to is another person who becomes aware of the unfair child support and custody legal system, another person who can lobby their legislature and Congress to change the laws. Right now the system is too complicated and full of legal jargon for most people to understand unless they’ve been subject to it for years, and by then their children are grown and they are too discouraged and worn out to do anything about it. While you are going through it, it takes up all your time and energy just to keep afloat – just to keep up with the endless paperwork and not get slapped with an order of contempt from the judge and required to pay thousands of dollars to your ex in additional attorneys fees just for being a few minutes late picking up your kids. Hopefully some fathers will read this who have energy and a passion to fix the system. Because sooner or later, the child support and custody mill is going to take on the “wrong” father, and that father will embark on an endless quest until he fixes the system. Not surprisingly, the system has already punished us indirectly, and we just happen to be the idealistic perseverant type that won’t quit until the system is fixed. When you see loved ones around you filing bankruptcy and other loved ones who are hundreds of thousands of dollars in debt, it hurts. You want to alleviate their pain, and prevent it from happening to others similarly situated. After all, the love of money is the root of all evil.
The amount of child support you will end up paying to your ex as your child grows up is enough to buy a nice house. Let’s say you are an average middle class dad, who splits up with your ex, and you have two children together, ages 1 and 4. The court orders you to pay $500/mth per child, based on your $45,000/year income, until the children turn 21 (some states end child support when the child turns 18, and others require it through age 21 and beyond if the child is still in college). By the time your children are grown, you will have paid $249,500 in child support. The main cost of raising a child is childcare; outside of childcare (which ends around age 12), do you really believe that $1,000 is being spent on your two children each month? If you think you are subsidizing your ex and paying hidden alimony, you are right. The main reason why the system is set up this way? The government would rather have you subsidize her than pay for her going on welfare. And the feminists (with tacit approval from old-fashioned conservatives who believe women belong in the home) have convinced the lawmakers and judges in society that women shouldn’t have to work to support their children if they don’t feel like it. It is an out of date assumption, considering 60% of mothers who are married with children work full-time outside of the home, and that number continues to climb.
And although almost everyone in society agrees that it’s better to have one parent at home raising the children, why can’t that parent be the father? Regardless, once a couple splits up, their bills go up since they are paying for things separately, and so it doesn’t make as much sense for the father to continue trying to pay for the mother’s household in addition to his own (and don’t believe those child support guideline charts – they pretend that the mother is supposed to be contributing a portion towards the kids, but it’s obvious from the amounts of child support ordered that the money goes well beyond paying for ALL of the children’s’ expenses and additionally pays for a large portion of the mother’s own expenses). Even though a judge may order a mother to get a full-time decent paying job, and may yell at her in court, the judge will rarely ever transfer custody to you because of her failure to work. Whether a mother works or not is not considered one of the “best interests of the child.” (discussed later)
Now you may be reading this and thinking “how terrible to promote an aggressive approach that will result in additional conflict between me and my ex, which puts the children in the middle of it.” This aggressive approach is not for everyone, and may not be necessary for everyone. If your ex is easy to work with, and you don’t mind her having primary custody and paying her child support and do not foresee any problems in the future, then there is no reason to take these affirmative steps to obtain custody. But unfortunately, the vast majority of parents split up with hostile feelings towards each other, resulting in use of the child custody and child support system to hurt the other parent. The parent who is awarded custody has significantly more advantages built into the system, making it easy for them to hurt the non-custodial parent.
As a non-custodial parent, you have to decide which choice will benefit you and your children the most: 1) fighting for custody, which will antagonize your ex and may disturb your children to be in the middle of it, but if you win, your children will be raised primarily by you, or 2) stick with the status quo, which means your ex will primarily raise your children, and will be able to use the legal system against you (which may include further restricting your visitation and require you to pay for supervised visitation – if she accuses you of domestic violence) until your children reach adulthood, which includes receiving a large percentage of your income in free child support that increases as your salary increases. And this approach may result in just as much friction as would be created anyways if you tried to obtain custody, if your ex is disagreeable in general.
Although it may sound like the easier choice at first to let your children live most of the time with their mother, the overall negatives may outweigh any benefits. For example, a typical custody arrangement splits the children every other weekend with each parent – so you’re not getting any more free weekends than you would if you had primary custody. Your ex gets every other weekend off as well. The weekday visitation of the non-custodial parent may be 3 evenings a week. This is really more of a hassle than just having the children with you, since you are most likely the one that must drive and pick the children up, then find something meaningful to do with them for 2-3 hours, which is not really enough time to drive back home and do anything, then drive back and drop them off again later. If your ex refuses to help with the driving, even though the custody agreement requires her to share driving, don’t expect the court to do much – the court certainly won’t change primary custody over it. So you now have 3 long evenings a week where you can’t choose what you want to do, you are stuck mainly driving around and must adhere to strict visitation times or risk having it held against you later in court. The court will not hesitate to further restrict your visitation if your ex alleges that you are late for your visitation periods.
Of course, it will never work the other way – the court will not reduce your ex’s primary custody if she is tardy. The courts give mothers wider latitude, “she’s trying as hard as she can to take care of 3 kids, give her a break!” (but what about Father taking care of 3 kids and working full-time? He’s just irresponsible, always tardy picking up his children) So is driving around 3 days during the week really easier than having the kids around with you at home during the week, where you can go about your business at home every evening if you want to, while they do their homework, help out with chores, go to your parents’ house or have your parents take them out to a movie at their leisure without worrying about the time, etc.?
Some have criticized this guide as being “anti-woman.” However, in reality, more women are hurt by the current situation than helped. For every one mother who receives favorable treatment from the court system, there are several women connected to the father who suffer. Each father has a mother, sisters, new girlfriend, or new wife whose life is also closely affected. When the father can’t afford to pay child support, who do you think ends up helping him with payments? His mother, girlfriend, or wife. Those women end up giving their own hard-earned money to pay child support to some woman they probably can’t stand and who not only has ruined the father’s life, but has made their lives miserable as well and will continue to do so until the children are grown up.
Whereas the women on the mother’s side of the family are much less likely to be negatively affected, since the mother probably has full custody and free child support income. The mother’s sisters and mother don’t need to help her out financially because of the free child support she receives, nor do they need to help her out with babysitting since the father is used as a free babysitter. And the free child support income isn’t even taxed to the mother (and note the double irony that fathers aren’t permitted to write it off for any type of tax deduction). The mother usually gets all or a majority of the childcare tax deductions – currently $1500 in free additional income per year and rising courtesy of the taxpayers. And the government is very good about tracking down and collecting all ordered child support, including any past due child support, from fathers. Most mothers never have to lift a finger, the child support agencies do all the work. If a father attempts to avoid paying any child support, the sheriffs’ offices regularly conduct “deadbeat dad” roundups where they haul dads into court who are behind on their child support.
What an easy way for women to make money – choose an easy target, have three kids with him, dump him, then receive an easy $19,500 per year in child support and tax credits. Why work as hard as everyone else at a $45k/yr job when you can settle for a $25k/yr job but make $45k because of the free child support? The father will pay for a lot of the children’s clothing and other expenses such as healthcare additionally on his own, so you get to spend virtually of the free money on yourself. Plus, you get to show off your kids as a mother, and complain about how hard it is to raise the kids on your own (never mind that it’s because you refuse to allow your ex any more visitation, because then you wouldn’t get as much free income or be able to punish him as much).
Rules of Winning Child Custody
If you are in the process of splitting up with your ex and custody has not yet been determined
This is the best place to be at if you’re a father reading this guide, since once custody has been awarded to a mother, it is much more difficult to reverse the status quo legally, especially if the child has been living with the mother for two years or more. It is important to get an aggressive attorney immediately, because the legal process favors mothers before you even start filing. Some fathers’ rights advocates recommend handling the legal battle on your own, by learning the system and acting as your own lawyer. However, this may not be the best approach. An experienced family law attorney has learned all of the intricate rules and knows the system. They have gone to three years of law school in order to learn the ropes. Do you really think that you can learn more in a few months than they have learned in several years of training and experience? Furthermore, if you can find an attorney who has a good reputation with the judges, you will have yet another advantage. When you consider how much money you have to lose in child support over the years until your child turns 18 or 21 or so, combined with the amount of emotional stress you will go through all of those years if your ex wins custody, as well as the fact that the court system is stacked against fathers, do you really think it is wise to handle your case without the assistance of an attorney?
However, if you cannot afford an attorney, then consider contacting a fathers’ rights group in your state and asking them if they offer assistance. The fathers’ rights group in Arizona offers fathers guidance in doing their own legal battles for $100 (CITE). To find a fathers’ rights group in your state, do a search on google for “fathers’ rights” and your state’s name. Many fathers’ rights groups will tell you that it is better to fight your case on your own than waste money on an attorney. When you consider that the odds are stacked against you, even if you hire an attorney, perhaps they have a point. You could end up spending thousands of dollars on an attorney and get nowhere. It’s a gambling decision you have to make, best made after you have read this book and assessed your situation.
It is in the judges’ best interest to adhere to the status quo provided for in the law, which is to award custody to the mother. It is easiest for them, and they do not want to risk being overturned by an appellate judge. Judges are expected to follow the factors laid out in law; it is risky deviating in order to be fair to you. So expect that istakes will be held against you and used to block you from proceeding with your case. Spelling and grammatical errors are looked down upon by the courts – you don’t look like a smart father who should be raising your children if you can’t take the time to make sure the pleadings you submit to the court are free of spelling and grammatical mistakes. Judges are not sympathetic to fathers filing motions on their own – “pro se” or “pro per” legal pleadings virtually always contain multiple procedural errors which annoy the judge, take up extra time of his to deal with, and give him the impression that you are not that smart or you would have figured out that you probably should have hired an attorney.
It is wrong but in some ways the legal arena is still a “good old boys network.” The judges and lawyers are all part of a system that respect each other, and everyone else is an outsider. Pro se litigants are considered annoying and not very bright. If you want to win in this old boys’ network, you need to go with the flow and hire an insider. It may be unfair, but judges look down on you if you don’t use an attorney, and they tend to become overly irritated at procedural mistakes – and you will make lots of them on your own, it takes years to learn the intricate rules. Unless your ex is a proven drug abuser and really doesn’t care about getting custody of the children, you have no chance at getting custody if you file a handwritten motion yourself. If your ex has an attorney, you will be up against their watchful eye as well as the judge, and the judge will consider her more fit because she has an attorney.
Additionally, judges detest family court. It is the least liked by judges of all the types of courts. Judges prefer to handle criminal law, civil law, or even boring trusts & estates court over family court. It is considered a demotion in many courts to assign a judge to family court. Most courts have required mandatory rotation in order to avoid the stigman of demotion. At least that lets you know that the judge you are assigned to will probably be moved off your case within a couple of years. Not surprisingly, most lawyers feel the same way about practicing family law. It is probably considered the least favorite type of law to practice.
If you can, keep the children with you when you split up. Try to convince your ex to let you keep the children “at first” at least. The judge will be much more likely to allow you to keep the children if you are the one who takes responsibility of them after you break up. Once you have split up with your ex, you will need to file some kind of motion to establish a custody arrangement. If you are getting a divorce, this will be included in your divorce papers. If you can, file first, because it will give you a slight advantage. You can probably find the papers on your state court’s website, or, as strongly recommended, hire an aggressive attorney to file for you.
Most courts generally allow you to change judges only once, at the outset of the case. So it is important to be aware immediately which judge your case is assigned to, in order to determine whether you should take your chances and request a different judge. Ask around the community or google your judge’s name to find out whether they are considered friendly to fathers. Be careful if you do not know anything about the judge, however, since you could request a different judge and end up with an even worse judge.
Be calculating when it comes to negotiating custody. Although you probably want primary custody, you may need to compromise and accept 50/50 custody. Some judges are simply not going to budge and give fathers more than 50/50 unless the mother is clearly a drug user or similar. Of course even 50/50 custody is difficult for fathers to get, and is not awarded very often. And most of the time, if you make more money than your ex, you will still be required to pay her some child support. Be careful here – if you appear too compromising at first, and your ex is not, the judge may award primary custody to your ex simply because you appeared to be more likely to accept a compromise than her.
Perseverance – Money and Emotional Stress Will Wear Your Ex Down
Although the child custody laws favor women, and although your ex may have free legal help from one of those government funded organizations that provide free legal help to low-income women who claim they are victims of domestic violence or some other injustice, you can still overcome this unfair disadvantage through sheer perseverance. Attorneys themselves tend to burn out in this area of the law, because of the emotional stress, particularly attorneys who are working pro bono or for very little money for a Legal Aid type of organization. Whether you are representing yourself or have hired an attorney, keep in mind the more work you create for your ex, the more you will wear down her resolve to fight you and keep primary custody of the kids. If your ex’s main reason for retaining primary custody of your children is to collect free child support from you, it will vanish fast once all of the child support is going to pay her attorney to fight you in court. And the emotional stress of receiving pleadings from you and having to see you frequently in court hostilely fighting her will reduce the incentive to continue receiving free child support.
The key is not to annoy the judge, if the judge suspects you are filing frivolous pleadings just to harass your ex, he may rule against you and you could end up being ordered to pay for some of your ex’s attorney fees – likely several thousand dollars. If your ex does not have an attorney, consider yourself fortunate – this gives you a huge advantage. The less she knows about the legal system, the better chance you have that she will do something in the eyes of the court that will hurt her chances of getting custody. It’s better for you if she rambles on in court about why you should have zero involvement in your child’s life, why she “can’t” work, why you need to give her more child support than the system is currently requiring of you, why you should have zero involvement in your child’s life, why you don’t discipline the children properly since you don’t spank them, why the children are better off in daycare than with you, etc. If she asks for your opinion on whether she needs an attorney, try to convince her that she does not need one and emphasize the cost to her. When you talk to your ex, such as when you are arranging to exchange the children for your visitation, be sure to bring up issues with her raising your children that bother you. The more you point out ways she needs to change her behavior in order to be a better parent and maintain custody, the more you will bother her. You know your ex – will she eventually give in if you continue to bring up issues that bother her and you continue to take her to court?
Build Up a Case Against Your Ex
If your ex already has custody of your children, spend 6 months or so collecting evidence of why your ex is not fit to be the primary custodian of your child. Each state generally has a “best interests of the child” statute which contains the factors the court considers when it determines custody. Look up your state’s best interest of the child statutes – unless your ex lives in a different state, then the legal proceedings will probably take place in that state. Collect evidence based around those factors. Although these factors unfortunately tend to benefit women, if you plan carefully, you can use them to your advantage. Here are the most typical factors:
A. The wishes of the child.
In most states, the child’s wishes are not taken into consideration until the child is age 12, and then only minimal weight is given to the child’s views on who they want to live with.
What you can do: You probably cannot use this factor to your advantage unless your child is at least 12, but check your individual state law to verify that it is age 12. Meanwhile, it can’t hurt to coach any psychologist that interviews your children to ask them if they would rather live with you, if you are fairly certain that they would prefer to live with you.
B. The interaction of the child with each parent, any siblings, or other person who may significantly affect the child.
This usually ends up benefiting the mother, because frequently the mother has other children from prior relationships, and the courts do not like to split up siblings, even half-siblings. And this takes into account grandparents, aunts, and new spouses as well, so if your ex is now re-married, but you aren’t, or her mother is helping her take care of the kids, this will favor her as well.
What you can do: Get remarried first – within 2 years of splitting up with your ex is best, unfortunately – then file for custody. If you have relatives nearby, pay them to baby sit so they become a big part of your child’s life. Get the child involved in church, so they develop an extended church family.
C. The child’s adjustment to home, school and community.
This tends to favor the mother, since in most situations the father is forced to leave the house and find a new home, whereas the mother usually ends up with the house and keeps the kids.
What you can do: If you have not yet split up physically, try to remain in the house with the children and have your ex move out. If you have left the home, start building a case as to why the child is not doing well living at the house, attending the nearby school, etc. Do research on the school or daycare the child is attending to obtain evidence of why that particular facility is bad for your child. Your state government should have records on all licensed daycares, usually in the department responsible for welfare. Many daycares will have a stack of violations and complaints. Some may even have articles written on their unsanitary conditions in the local newspaper, which you may be able to find just doing a google search.
Get involved in your child’s school; show up for all school events and be extra involved as a parent, going on field trips and bringing the grandparents too. You may need testimony from your child’s teachers later. However, if your ex is fairly involved with the school, you will probably never win over the teachers, and your ex may in fact use them against you. You will probably be better off showing why it is a poor school for your child. Information on schools should be found on your state department of education website, or available if you go to the department’s office. Don’t move very far away from your ex if possible; if you move away you will have less visitation, which the courts view negatively. However, if you realize you have no chance at ever obtaining custody, consider when moving away that states vary in child support calculation, and so you may want to move to a state such as New Hampshire that has lower child support requirements.
D. The mental and physical health of all individuals involved.
This usually favors the mother, since in a large number of cases, when a couple splits up, the mother kicks the father out of the house, and so the father tries to get back into the house. The father’s actions in trying to get back into the house, or attempts to take the children, are used as evidence that he is mentally less stable than the mother. If the mother has ever called the police on the father claiming domestic violence, this will be used heavily against the father.
What you can do: Do not do anything that could be perceived later as mentally overreacting or physically aggressive. If your ex attempts any physical aggression towards you, call the police to create a record. If you think she is going to call the police during a fight, preempt her by calling the police first. In some states, including Arizona, the police are required to arrest one person if they receive a call claiming domestic violence.
Collect any records you have on the mental instability of your ex or her family or others living with her, including medical records if you can get them, and any police reports or convictions of their physical violence. Police reports are public records and must be released to you if you request them. Have a tape recorder handy to tape your ex if she has angry outbursts or threatens you, such as threatening to withhold visitation. Send your ex a certified letter, saving a copy, requesting that each time your child has a doctor appointment that you be notified in advance so you can attend. If your ex is neglecting to take your child to the doctor or dentist (pay attention to how many fillings they receive for decayed teeth, and whether they are receiving regular checkups with the dentist, doctor and eye doctor), keep a log and send your ex certified letters politely pointing out that the children are overdue for medical treatment and requesting that she take them, and if you are permitted to take them for medical treatment, take them yourself. Request copies of all medical paperwork from the doctors.
E. Which parent is more likely to allow the child frequent visitation with the other parent.
What you can do: Keep a journal of your visitation times with the children, even if visitation hasn’t been established yet, including every time your ex withholds visitation, is late, or refuses to allow you to have additional visitation for a special occasion, e.g. your relatives are in town. That journal is generally admissible in court. Also document statements by her where she withholds visitation from you. If you are permitted in your state to record phone conversations, make sure you record these types of statements by her. Unfortunately, since this is the only criterion that tends to favor fathers, it is mostly ignored by the courts.
F. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.
What you can do: Do not put anything in writing to your ex that might be interpreted in court as threatening. Be careful what you say verbally, especially over the phone, since she may be recording you. As you probably suspect, this criterion favors mothers. Write down or record any statements from your ex trying to coerce you into granting her primary custody.
G. Which parent the child has spent the most time with.
What you can do: This factor generally favors mothers, since mothers are more likely to be stay-at-home parents or work only part-time. If you have not yet split up with your ex, think strategically here. Try to rearrange your schedule so you are the primary one taking care of the children if possible, or you are the one taking care of them when they are not in school. When you split up, before you go to court to establish a custody arrangement, try to keep the kids living with you.
You Need an Aggressive Attorney
Since this area of law requires aggressive action, it follows that any attorney you hire must be aggressive as well. Too many fathers have wasted thousands on dollars on passive attorneys who simply persuaded them to agree to disagreeable settlements, telling them that was the best they could get. But was it? If you are a moral father with a higher salary than your ex who deeply cares for your children, whereas your ex is barely working and flits from guy to guy, shouldn’t you be able to win custody of your children as the better parent? There are many different types of attorneys. Hire one who is aggressive in this area of the law and primarily practices family law. If you cannot afford an experienced attorney, at least find an aggressive attorney. When you meet an attorney for the first time, you can usually sense by their personality whether or not they are aggressive, but it’s best to directly ask them. You should be able to look up what law school they attended on the state bar’s website, and you can find its ranking on the U.S. News & World Report website. Look them up on google as well to see if they have a biography or other information. Keep in mind that an attorney who advertises on television for really cheap services is probably going to provide with just that – really cheap services. If you hire an aggressive attorney right from the beginning, and your ex does not, you may be able to convince your ex to avoid a costly legal battle and grant you a reasonable custody agreement. Most people who have not dealt very much with the legal system are terrified of having papers filed against them in court. You may be one of the lucky ones and file the initial petition to modify custody against her and that will be enough for her to give up. Of course, it is not that unusual for middle class parents to spend $60,000 on a divorce and child custody fight.
Watch out for attorneys who advise you to give in and agree to a custody and support arrangement that you don’t believe is the best you can get. Trust your gut instinct and get a second opinion from another attorney. Your local state or county bar should provide a lawyer referral service where you can consult with an attorney in a particular area of law for ½ hour for $35. Just because the attorney believes that you only have a small chance at getting a better custody agreement does not mean that is the best approach. And just because family law is your attorney’s area of expertise, does not mean that his recommendation to allow your ex to have primary custody is the best one for your children and you. He is probably jaded from the system and figures you may as well settle since that’s all most fathers are going to get. If you think it’s worth a few extra thousand dollars to continue fighting for better results, then tell your attorney to continue fighting.
You Need to Proactively Research Your Case, Even if You Have Hired an Attorney
It is such an uphill battle to win custody, that you will need every advantage you can get. If your attorney has only practiced in this area of law for a couple of years, they may not know every tactic you can try. Two minds are better than one. Use the internet to research child custody, sites like http://freeadvice.com have a wealth of useful information. If you are litigating your case on your own, join fathers’ rights groups for assistance, and purchase the relevant statute and rule(s) books for your state (the state where your children are located and where the court case is being litigated). Some states, such as Arizona, have fathers’ rights groups specifically dedicated to helping fathers obtain custody of their children (arizonafathersrights.com for example). Check out your court’s web site as well, it probably has free legal forms you can use instead of drafting them from scratch.
You Need to Build up a Substantial Case Against your Ex
Most courts are only going to award custody to a father if the mother is clearly unfit, or if there is a substantial change in circumstances that justifies the change. A substantial change in circumstance is usually something along the lines of your ex being locked up in jail for awhile, or continuing to have numerous more children with multiple fathers while sharing an apartment with 10 other people who have several criminal convictions and are frequently arrested. If there is no substantial change in circumstances, you will need to provide the court with a composite of reasons why your ex is unfit. These are standards that are determined by the judge, not you. You may think your ex is “unfit” because she sits around in a messy house all day and the children wear dirty clothes, but that is not “unfit” in the eyes of the court. To prove that she is unfit, the court will need to see her come into court inebriated, receive a felony conviction for prostitution, have the children repeatedly miss several days in a row of school, or something along those lines. Of course, don’t expect the court to give you the same leniency if you have primary custody of the children – remember the laws are still predisposed to give children to their mothers and society still thinks that children belong with their mothers.
If there is no substantial change in circumstances, nor symptom of unfitness as described above, you will need to compile an extensive list of reasons why your ex is unfit. For example, a strong case might provide concrete evidence that your ex abuses alcohol, drugs, sleeps around and goes from boyfriend to boyfriend who use drugs in front of the children, cannot maintain a stable residence, leaves the children excessively in daycare, which is a substandard daycare, smokes in the house and in the car although the children are asthmatic, cannot maintain a steady job, and frequently withholds visitation from you. Other factors the courts will consider include mental illness of the mother, abuse and neglect such as failing to provide medical and dental care, sexual abuse of the children by the mother or others she brings into contact with the children such as her boyfriend or relatives, and domestic violence, which can be used against the mother if it is occurring at her residence around the children. Keep a journal every day of anything you think might be relevant in the future. Not only will it make it easier drafting pleadings later, but your journal is probably admissible in court and will add credibility to your allegations. Have anyone who witnesses anything relevant write letters to the court detailing what they have seen, and submit them later all at once when you are presenting your case.
If your ex decides to move out of state, but does not give the court a justifiable reason, the court may very likely give custody of the children to you. Moving out of the state in order to “find a job” or be closer to your religion’s headquarters do not constitute valid reasons. Valid reasons in the eyes of the court include having a job already lined up in another state, or moving because the mother’s new husband has gotten a job in another state.
Record All of Your Phone Conversations With Your Ex and Your Children
Some states permit you to record phone conversations without the other party knowing. There is a list of all 50 states and their laws on recording phone calls located at http://www.rcfp.org/taping/. If you live in one of the states where it is legal, you should start automatically recording every conversation you have with your ex or your kids when they are at her house. There are small tape recorders available now that hook up to cell phones, available at Radio Shack. If you live in a state that requires both parties to assent to recording, it is worth a try to ask your ex at the beginning of conversations if she will assent to recording. If she says no, then be sure to write down anything that might be pertinent after each phone call; your notes are admissible in most courts. The standard of admissibility in most family courts is much broader than in criminal and other civil types of cases. Almost any evidence is admissible if the judge determines that it is “relevant.” Family court is also different in that there is no beginning or end to the litigation – it can go on indefinitely until the child is an adult, and frequently does. Many parents have files that are several feet thick. This is another reason why it is better to have primary custody – you will have considerably more control over the litigation. If your ex realizes that the litigation can go on every single month for the next 15 years or so, she may be more likely to give you custody just to have peace and avoid the continuous stress of court.
Convince Your Ex to Willingly Give You Custody of Your Children
The main reason many mothers become adamant about having custody is because of the free child support and knowing that they are sticking it to you. You need to use this psychological factor to your advantage. Tell her that if she accedes and gives you primary custody, you will not request any child support, and if necessary, offer to pay her alimony for the first year or a large sum of money to help with “bills.” Or help in other ways you know she would appreciate, such as both picking up and dropping the kids off at school and activities. Although it seems unfair, in the long run you will save hundreds of thousands of dollars in child support as well as years of emotional stress. Figure out what will convince your ex to give up custody and work very hard on it. Maybe your ex wants to start taking college classes, but with taking care of the kids on top of work has no time. Emphasize how difficult it will be for her to raise the children alone while trying to pursue other interests, pointing out how she will be stuck with the kids on her own almost every day and night of the week. Be as nice as you can and assure her how accommodating you will be to her and her schedule. Of course, she can always change her mind later. However, it will be much more difficult for her to get custody after you have had the children by yourself, particularly if you have had them for at least two years.
The Courts are Interested in Pushing Cases Through Quickly, and Discouraging Parties from Going to Court
A common misconception fathers have about the court system is that the court is going to assess their situation based only on what is fair and what is best for the children. This fails to consider the pressure on the courts to look at other factors. Judges are overworked and cases take a long time to make their way through the system. Consequently, judges are under considerable pressure to maintain the status quo, and prevent both parents from filing motions and requesting hearings. It is quickest and easiest to defend a decision to award custody to a mother and maintain that status until the child reaches adulthood. Furthermore, a majority of judges, reflective of society, still believe that children belong with their mothers – more so than with their fathers. You have to overcome all of those hurdles. Don’t buy into their authoritative sounding opinions on how the custody arrangement should be; they are affected by the aforementioned prejudices.
A common tactic by judges in family law cases is to deal with only one issue at a time, because when fathers realize that it is going to take them numerous trips to the courthouse over a considerable period of time, they are less likely to continue fighting for custody. At a cost of $500/mth for an attorney, combined with another $500/mth a father pays in child support, most fathers cannot afford a custody battle that will last a couple of years. The only thing you can do is use this to your advantage – every time your ex has to go to court or respond to one of your pleadings, it is causing her emotional stress as well as money if she has an attorney. Of course, she is very likely receiving free legal representation from a taxpayer funded domestic violence legal organization – they’re not going to require actual visible bruises in order to agree to represent her.
However, if she realizes that all of the child support you are paying her ends up going to pay her attorney, coupled with the additional factor of emotional stress, she may give up after awhile and hand over custody to you. One father, after being ordered to pay $4,000 of his ex’s attorney’s fees on top of an extremely high child support amount, filed for bankruptcy. Although child support is not dischargeable in bankruptcy, the attorney’s fees were, because they had not been ordered as a judgment but simply as an order (which is fairly standard). Since the debt had been re-assigned to the father, this left the attorney to go back and collect the $4,000 from his ex (not sure if the stricter bankruptcy law that went into effect in October 2005 would change this outcome).
You Need to Make a Good Impression on the Judge
Think about what types of things irritate a judge and avoid making those mistakes. Make sure your paperwork is perfect and does not contain typos or spelling errors. Judges prefer to deal with attorneys, not you, so keep that in mind if you choose to represent yourself. Since you don’t know the rules of court as well as a family law attorney, the judge will see you as an irritant. Do not interrupt the judge or anyone else in court. Don’t blame your ex in front of the judge; the judge is tired of hearing parents blame each other.
Watch Out for Domestic Violence and Restraining Orders (also known as Orders of Protection)
One of the key factors judges consider when awarding custody or changing visitation is whether there has been any “domestic violence” or restraining orders. This is a factor which overwhelmingly benefits mothers, since men rarely call the police to report domestic violence, or press charges, or obtain restraining orders. Whereas women are taught by society to call the police for help and report domestic violence – even if it’s just a yelling argument. Women are given the impression that it’s “noble” for them to call the police about a yelling argument, instead of working it out themselves. So women now abuse this system, because “domestic violence” has been broadly defined to include almost any behavior by a man that a woman remotely construes as negative. “Glaring looks” and “financial violence,” whatever that means, are considered domestic violence. A woman can claim that you are threatening her, and on her word alone, obtain a restraining order against you, because you have no way of proving that you really did not threaten her. A woman can get one of her friends to testify falsely in court that you hit her when you didn’t – and you have no way to prove that you didn’t. It is risky for a judge not to grant her the restraining order, because even though there is probably a good chance she is lying or you really would never lay a hand on her, because there are a few guys out there who really would beat a woman, the judge doesn’t want to risk that you might be one of them. All it takes is one time, one rotten guy – if a judge does not grant a restraining order and a guy seriously hurts his ex, it will be all over the papers and the judge could very well lose his job over it. The judge does not want to risk his job that you will be that one rotten guy.
At a minimum, be sure to tell the judge about any domestic violence that she committed against you at the same time, for example, if she hit you first or came at you threatening to kill you. It is even better if you have a friend show up to testify that they witnessed domestic violence by your ex – particularly if it was in front of or involving your children. You must show up to any court hearings to dispute any requests for restraining orders, or they will be ordered against you by default. Not only will a restraining order jeopardize your chance of ever getting custody, but it will cost you extra money, because you may be ordered to pay for a third party to supervise the exchanges or even your visitation with your children. They are not cheap – usually $50 per hour of supervised visitation, which you must pay for.
If your ex has already reported you for domestic violence or obtained a restraining order against you, there is little you can do, at least for the first year of the order. When the hearing for review of whether the restraining order should be extended comes up, be sure to hire an aggressive attorney to represent you to get it dismissed. Meanwhile, be sure to notify the police of any domestic violence by your ex. It may be hard to obtain a conviction against your ex, because you’re a man and she’s a woman, but at least you will have the police reports. Police reports are admissible in court, although you will probably be required to bring the reporting officer to your hearing to authenticate them as exhibits. The judge will be less likely to grant or renew a restraining order against you if there is solid evidence that your ex has been harassing you. Domestic violence encompasses anyone living at a residence; if your ex has a new abusive boyfriend or violent father, they can be reported as well. Be sure to check with the local law enforcement agencies (city, county and state) to see if there has ever been any reports of domestic violence or crimes at your ex’s residence as well as any residence where her children regularly visit, e.g. her boyfriend. Keep in mind though that police reports of domestic violence can be used against you too, if you are in a new relationship with a violent girlfriend yourself, your ex can call and report you.
When you file for a change of custody, the court will probably order a custody evaluation. These are assessments by a social worker that usually end up favoring the mother. The type of people that are attracted to this type of job are low-income women with a chip on their shoulders; they are not going to be predisposed to making a determination that children should be with their fathers. They will usually behave nicely to your face but beware – what they write in their reports about you and your relationship with your children will probably shock you. They will latch on to small details to justify their preferences to give the children to the mothers. For example, if the children cry when they leave their mothers to go for visits with their fathers, the social workers will emphasize this in their reports and claim that it is evidence that the children are unhappy with their fathers. It is never the mother’s fault. Perhaps the mother has been saying negative things the father, or has an unnatural overly emotional attachment to the children, which is why the children cry when they leave her. But don’t expect the social worker to accurately report this.
One way to combat these custody evaluations is to preempt them with a psychological evaluation of your own. Before the court can assign someone, find a child psychologist who has a reputation for being favorable to fathers, and preferably also one on the court’s approved list of psychologists, if the court has one. Have him perform a preliminary evaluation of your child ($200 – $500). You may want to give the psychologist leading questions to ask your child, such as whether your child would rather live with you, if mother abuses drugs, alcohol, or smoking in front of the child, if people close to the mother physically abuse or sexually touch the child, etc. – whatever bad things your child has indicated to you about living with your ex. If the results are favorable, and you have begun building up a case against your ex, that is probably when you want to file for a change of custody. If your ex doesn’t give up after you file, then you can go ahead with the full psych eval, which will cost at least $1,500.
And Do Not Forget: Do Not Get Behind in Child Support and Do Not Miss Your Visitation or Court Dates
There is no easier way to ruin your chances of getting custody of your children then by failing to pay child support or missing visitation. Yes it’s unfair that you have to pay child support (a fairer system would be to eliminate child support and have the parent who is fortunate enough to be awarded custody have full responsibility for providing for the children when they are with that parent), but if you fail to pay child support and get behind, the courts will not be sympathetic, and will view you as a “deadbeat dad” that doesn’t deserve custody. If you get behind in child support even a few hundred dollars, the court may very likely issue a warrant for your arrest, and if you do not pay up immediately, will probably put you in jail. If you are fortunate, a “compassionate” judge might permit you to stay out of jail if you pay less than the full amount past due, and agree to pay the rest in installments. From the first day you and your ex split up, the court will order retroactive child support. So, if you split up with your ex in January, and finally make it to court to establish child support and visitation in June, the court will assess you child support payments going back to January as if they had been in place then! Be prepared to come up with a significant chunk of money in June, otherwise it will be considered past due child support and added in parts to your newly established monthly child support payments – collecting interest the entire time which you must also pay.
Make sure you have a paper trail of all payments sent to your ex – don’t just give her cash, because she may not admit she received it later, and the burden of proof is on you to prove that you paid her. In other words, the default is that the judge will take her word over yours, unless you can prove otherwise. Send your child support checks by certified mail and save copies of the cashed checks. If you lose your job or take a lower-paying job, file paperwork with the court as soon as possible in order to lower your child support accordingly. Generally, even if you are fired, you are still entitled to have your child support lowered to account for your time out of work to some extent – but you must be proactive and file the paperwork yourself, the court isn’t going to lower your child support unless you affirmatively ask for it, and they won’t retroactively lower it afterwards. Remember, it’s in the court’s interest to have you pay the most money possible to your ex, because that ensures that she will not go on welfare. If you miss any court dates or visitation, including being late dropping off or picking up the children, you can expect that to be held against you later. Don’t assume that your ex or the court will give you any leeway. The court is always happy to find more justification for keeping the status quo, and evidence that you cannot stick to their timelines and required child support payments is enough proof to them to back up a decision to deny you primary custody.
The media has contributed to creating the stereotype of a “deadbeat dad” – a cleverly drafted description which connotes the image of a dad who isn’t being a father to his children, when in reality it is simply a father who has fallen behind in the huge child support payments because they are an enormous financial burden. The father is probably being gouged 1/3 of his salary in child support and can’t even afford to pay his rent. A more honest description would be “father who can’t afford the amount of child support ordered.” The media seeks out round-ups of dads behind on their child support and films the arrests under the prominent theme of “deadbeat dad,” sensationalizing the “crime” of being behind in child support. This has entrenched in the minds of mothers, the general public, as well as judges that not only is child support a necessary thing, but fathers who get behind in payments, even just a few hundred dollars, are bad fathers and criminals.
Judges Believe that Children Belong with their Mothers
There is still a perception throughout society that children belong with their mothers, and this attitude is shared by the courts and judges. I spoke with a judge recently about the bias in the legal system, and she said that the bias towards mothers is a good thing, since mothers “have a special bond with their children.” When I asked her what about fathers bonding with their children, she dismissed it. I knew she was politically conservative, so I tried to appeal to the conservative concept of treating everyone as individuals instead of as groups, asking her isn’t it better to look at every situation individually instead of treating men and women all according to stereotypes? She gave me a blank stare and mumbled something about deadbeat dads. So, not only do you have to overcome the bias inherent in the laws, but you are fighting against old-fashioned and feminist viewpoints shared by judges that believe mothers are better parents than fathers. Last updated 1/22/06
Rachel Alexander is part of Leading Women for Shared Parenting. She has done work with a domestic violence law clinic and studied this area of the law in law school. Send us feedback at feedback-at-intellectualconservative.com. This does not constitute legal advice. If you need professional legal advice, please contact an attorney. If in Arizona, we recommend Patrick McGill or Susanne Sternberg, who were our attorneys and did an excellent job (two instances where fathers obtained 100% custody).
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