Men often ask me, “what is the single best tip you can give me for getting my kids the parenting time they deserve?”
That’s an easy answer, but commonly not such an easy thing to prove. Before we get to the answer let me explain a little bit about how parenting time is determined in general. Obviously, I can’t cover all the nuances in different states and the specifics of every situation. As such, I won’t go into great detail and much of this will be parsed out as individual topics in future discussions. This issue is so varied and complicated that it could occupy a lifetime of study and does for some people. Lastly, this is not intended as legal advice simply a layman’s perspective built from the experience of myself and other men.
The Best Interest of the Child…
It is a typically held belief that men are not afforded the same legal status as women in a parenting time dispute (especially in disputes with very young children). This is not mythology or urban legend; it is a fact that there are virtually no legal statutes that give a man the same presumptive rights to his children as his soon to be ex-wife. Why? This relates back to the attitudes and beliefs held during the time of the “tender years doctrine”. Future posts will deal with the evolution of the US legal system from the “tender years doctrine” to the doctrine of “the best interests of the child”. Even with the change to the “best interests of the children doctrine” in the 20th century, men in today’s family law system are still too often the victims of outdated perceptions, biased or uneducated judges, or simply a spiteful spouse. Men are also to blame, they are typically ill-prepared and don’t understand the tactics that can be used against them when it comes to determining parenting time and they simply don’t know how to fight back. It is in your child’s best interest to have you in their life.
50 / 50 Isn’t the standard?
I am a supporter of a movement for what is termed “a rebuttable presumption of 50/50 parenting time”. I am not a proponent of mandatory 50/50 parenting time. I believe there are good and bad mothers, good and bad fathers, and that we all have the capacity to be good or bad humans. I also understand that for some men and women, 50% of the time with their children is not what they want or have the capacity to achieve. But I believe the conversation about where our children should spend their time should start at 50/50 and evolve from that point. I also believe this should be the legal standard in all 50 states. For some of you, you probably didn’t even know this wasn’t the legal standard already. More on that in a moment.
What does a “rebuttable presumption of 50/50 parenting time” mean? In short, you can think of it like this. A divorcing couple enters a courtroom, the judge must automatically give equal consideration to each parent and grant each parent 50% parenting time… UNLESS… there are extenuating circumstances (ie. abuse, neglect or other factors that are not in the best interest of the child).
Mark Ludwig explains this concept well in this video from Americans for Equal Shared Parenting…
Now how many of you thought that this was the case already? If so, you are like many men and the general public, uninformed about the rights you have in divorce and in a contested parenting time case. Currently, in 49 states across this country, there is NO rebuttable presumption of 50/50 parenting time. Only men in the great state of Kentucky now have a legal rebuttable presumption of 50/50 parenting time and this was just passed into law in 2018.
While most research online will show that nationwide we are seeing a slight increase in fathers being awarded more parenting time there is still no legal standard on the books in 49 states that mandate all custody disputes begin with the presumption of 50/50 parenting time. Even saying there is an increase in fathers being awarded parenting time is misleading because this does not mean 50/50 parenting time, the nationwide average for parenting time with fathers is estimated to be 35%. Approximately 20% of children are living with only their mother as of 2019. (https://www.census.gov/data/tables/time-series/demo/families/children.html). Assuming the average 35% parenting time means a father will see his child for about 128 days per year. This is not acceptable for most men, nor should it be.
If you are married and have very little input on your children’s lives currently you stand the same chance of getting that same arrangement when you get divorced. If you are a man that is satisfied with being a visitor every other weekend and on designated holidays then you are in the wrong place and can stop reading.
For the Warriors Who Want More…
What you must understand is that the increase in a father’s parenting time is not because of any legal statute that mandates it to be so, it is a result of parents working together to get to that point and coming to a mutual agreement either by choice or through a 3rd party parenting time evaluation. It is also the result of more active fathers, which is great news. If your soon to be ex is supportive of 50/50 parenting, you are in luck, but the majority of men I speak with aren’t that lucky. There is a growing swell of support from women who support 50/50 parenting time, however, there is still a significant portion of women today who do not hold this belief, especially when they learn of the financial benefits of keeping fathers from their children. In today’s family law system, overnight stays with parents have a direct dollar value to each parent.
Barring cases of abuse, neglect, drug addiction, and various other detrimental factors that are not in the best interest of the children, who wouldn’t support their child’s equal relationship with the other parent? The answer is a lot more women than you think and still a lot of judges throughout this country. So what happens if you are in a high conflict divorce and your ex-spouse doesn’t agree to 50/50 parenting time?
Currently, the amount of time you will get to see your children after divorce is basically up to 2 people; your soon to be ex-wife or a judge. In either instance, most men would say that it is not in their best interest to leave that decision up to either of those individuals.
You see, if your ex-wife doesn’t agree that you should spend more than 2 weekends a month and maybe 1 overnight every other weekday (if you are lucky) you better be prepared to go into battle mode. If your children are younger than 3 years old, you have even less chance of seeing your children more than 4 times a month. If your soon to be ex-wife doesn’t have the capacity to think in terms of the best interests of the children you are left with the opinion of the judge. How many men will leave that decision up to a complete stranger with their own personal biases? I wouldn’t and you probably shouldn’t either.
There is an argument held by many of the shared parenting activist groups that judges are even incentivized to award unequal custody arrangements and therefore child support to help states receive federal incentives based on the provisions of Title IV D of the social security act. Again this is a whole topic best reserved for another time.
Beyond allowing your child’s time with you to be limited for the arbitrary and frankly narcissistic musings of your soon to be ex-spouse, or taking your chances with the opinion of the judge, there are steps you can take to ensure your children have the parenting time with you they deserve. Most of these options depend on the “impartial” investigations of professionals who become witnesses in your case and advocate on behalf of the children. These options are expensive, time-consuming, and fraught with bias and pitfalls. Again those processes are a subject for another time.
The Best Advice for Dads…
But getting back to the original question of what you can do to help ensure you get the time your children deserve, the answer is simple. The single most important thing you can do to increase the chances of your children getting the parenting time with you they deserve is to simply be a good dad BEFORE you get a divorce. It sounds so simple, I know. It’s also never too late to become a good father. Maybe you are saying to yourself that you are a good dad, your kids love you, and everyone knows, so I won’t have an issue. That’s great and I hope it is true because your kids need you. But your real issue now is proving that to the court. Can you prove it?
But Can you Prove it?
Have you ever thought about how you would prove that you are a good father? If not, I have some suggestions for you, I would love to talk with you more.
-The Divorce Warrior (TDW)