There is a common misconception that mothers will be granted “sole custody” of the children in a divorce. However, this is not the position at law as the court almost always grants “joint custody”, save for exceptional circumstances. Ultimately, the court will decide based on the child’s best interest.
Here are seven things that Dads should know during a custody battle.
Child custody is not the same as Care and Control
It is vital that you understand the difference between child custody and care and control. As mentioned earlier, the Court is most likely to grant joint custody to both you and your ex-wife. However, only one party will be granted sole care and control of the children usually.
The parent with custody of the children will make all major decisions for them, including healthcare, education, religion, etc.
By granting joint custody to both parents, the Court wants to remind the parents that parenting does not end when the marriage ends.
The parents are encouraged to co-parent and discuss significant decisions before implementing them for the children.
The parent with care and control of the children is the one who lives with them. He or she will make all the day-to-day decisions for the children. That includes the time the children wake up, what time to sleep, when they do their homework, etc.
Fighting for full care and control of your children is an uphill battle
Unfortunately, for Dads, the general position at law is for the mother to be granted care and control of the children. However, all is not lost.
If you have been the children’s primary caregiver before the divorce, you can highlight this pertinent fact to the court especially if you intend to ask for sole care and control or share care and control of the children.
Shared care and control effectively mean that the children will spend approximately equal time with both parents.
However, such an arrangement will require a lot of communication and cooperation between parents. The children will also need to adapt to such circumstances. You may consider asking your divorce lawyer for advice on the care arrangement most suited to your situation.
Access to your children is your legal right
In the event that you do not get care and control, you will be given access to your children on a periodic basis.
You have a legal right to have access to your children as stipulated in the court order.
If your ex-spouse denies your rights to exercise access, you should consider speaking to her in view of resolving the matter amicably. Put her at ease if she is anxious and help her to get around the idea by bringing the children home on time.
However, if she is resistant, you can seek help from your divorce lawyer or make an application to Court to intervene and help you to gain access to the children.
Adultery on the part of your ex-spouse does not necessarily mean you get full custody as well as care and control of the children
Do not be mistaken that you automatically gain sole custody as well as care and control of your children if your ex-wife has been adulterous.
The reason for the breakdown of the marriage pertains to the first stage of the divorce matter, and the mere fact of adultery will not affect one’s merit in relation to custody, care, and control of the children.
You may consider applying to Court for a Custody Evaluation Report to be made.
A social worker or counsellor will speak with your children as well as other family members to determine the conditions at home before offering his or her recommendations to the Court. It is still the Court’s final decision to decide who gets care and control.
Your children get a choice in some cases
The Court will listen to your children’s desires if they can express themselves in an independent and mature manner.
A counsellor or a social worker will assist in the process to listen to the children’s preferences.
The Court will then take the children’s desires to stay with either parent into consideration when deciding on care and control.
You should not try to influence your children’s decisions
To ensure that you get a just and fair outcome during a custody battle, do not try to influence your children’s desires. This is frowned upon by the Court.
If you do so and it gets uncovered by the Court, you are more than likely to lose your credibility in the eyes of the Court. It may affect your chance for joint custody and a shared care and control plan.
If you have been the primary caregiver of your children, trust your children to reflect your involvement in their lives during the interview with the social worker or counsellor.
You need a concrete care plan if you intend to convince the Court to grant you care and control of the children.
If you are the primary caregiver for your children and want to convince the Court that you are a suitable caregiver, you need to present a concrete care plan to present to the Court.
You need to show the Judge that you can look after your children on a day to day basis.
Your plan should include everything in your children’s daily lives – what time they wake up for school, who brings them to school, who will care for them when they return home from school, etc.
You also need to assure the Court that you will not block your children’s access with the other parent and will, in fact, facilitate the access.
The Court will consider your plan and decide whether it is in your children’s best interest if they stay with you.
If you’re a father who needs help attaining custody and visitation rights of your child, contact our dedicated child custody lawyers.