For many years, fathers who sought physical and legal custody of their child had an uphill battle, as courts favored the mother retaining custody. However, times have changed, and biological fathers are viewed as having the same parental rights as biological mothers.
Courts are compelled to make decisions in the best interest of the child. Generally, it is considered that joint custody between the biological parents is in the best interest of the child, but every child custody case is unique. There are three important areas that can affect your individual child custody case:
1. How Paternity is Established
If the parents were married at the time the child was born, establishing paternity usually is straightforward. The court will assume the child is the product of the marriage, and the husband is the biological father. If the parents were not married at the time the child was born, you must prove that you are the biological father in order to gain rights to child custody.
The simplest solution is for the mother and you to both sign and file an acknowledgement of paternity with the court including the child’s birth certificate with you as the named father. The best divorce lawyers will tell you the simplest solution is not always possible.
If paternity is disputed, be prepared to undergo DNA testing to prove your biological paternity. If you are an unwed father who has not established biological paternity you will not have legal rights to child custody.
2. Types of Custody
Overall, there are two types of child custody:
- Physical custody. This mainly has to do with where the child lives, and which parent cares for the child.
- Legal custody. This gives you the right to make important decisions on behalf of the child, such as medical, educational and/or religious decisions.
Today, in practice, there are several ways that child custody may be arranged:
- Joint custody is when the child lives a portion of the time with the mother and a portion of the time with the father. This is granted if the court is convinced that both parents are able to care for the child when the child is residing with him/her. The active participation of both parents in the child’s life is now considered to be in the best interest of the child.
- Sole custody is granted if the court is convinced that only one parent is able to care for the child. The other parent may retain partial custody rights as allowed by the court.
- Primary physical custody is when the child resides primarily with one parent only, and the other parent has partial physical custody.
- Bird’s Nest custody is when the child resides full-time in the family home, and the parents take turns living in the home and caring for the child.
3. Factors Considered by the Court
You may wonder what factors the court may consider when awarding physical custody. The court may deny any physical custody if you cannot provide a safe home, if there is evidence you have abused the child, if the you abuse drugs or alcohol, or if you have been absent from the child’s life for an appreciable amount of time.