Good point, and good question.
Although the amount of time fathers are being awarded with their children is increasing in child custody dispute cases (and has been for the past 40 years or so), many fit, loving fathers are still generally and unfairly awarded much less time with their children than are mothers.
One legitimate reason that many mothers are awarded sole physical custody or primary physical custody of their children is because those mothers are often better positioned to provide care for young minor children due to having no other work demands other than homemaking and childrearing or, if they are employed outside the home or their job allows them to work from home, working fewer hours than the father does or having a job/job schedule that is more conducive to childrearing (e.g., a job that is flexible, so that Mom can take the children to doctor’s appointments during the work day, or a job schedule that is the same as when the children are in school, so that Mom can be home when the kids are home).
But what about parents who are both fit and loving parents and both work full-time and whose schedules are more or less the same, with neither parent being able to claim, “my schedule is more conducive to providing the care and supervision our children need”? This is where far too many courts discriminate against fathers unfairly. Shamefully unfairly. How?
If a court sees fathers as second-class parents. If and when such a court does so, it will rarely state it for the record because such judges know that treating fathers as second-class parents constitutes unfair discrimination. And so such judges will disguise their bias with “findings” that are not true.
For example, discriminatory courts will “find” that the mother is the little children’s (infant to about 12) “primary caregiver,” even when 1) the evidence to support such a finding does not exist; and/or 2) the father is not found to be unfit as a joint or equal custodian of little children. Or discriminatory courts will “find” that the mother was the tween or teen children’s (around 13 and up) “primary caregiver,” even though 1) the evidence to support such a finding does not exist; 2) the father is not found to be unfit as a joint or equal custodian of little children; and/or 3) tweens and teens don’t need parental care or supervision 24/7, so the primary caregiver factor is irrelevant.
If a discriminatory court with a bias against fathers or in favor of mothers wants to award custody to the mother AND if the shrewd mother has made a false allegation of spousal and/or child abuse against the father, odds are that merely making the allegation will create an insurmountable barrier to the father winning joint or equal custody of the children. Discriminatory courts can and often do latch on to the abuse allegations and, working backward from the outcome the court desires, “find” that the abuse allegations are credible, and thus, father is not qualified to exercise joint or equal custody. Some judges award custody to mothers when there are allegations of abuse made against the father not because the courts are biased against fathers but because these judges 1) don’t want it on their consciences if they were to award joint or equal custody to a man who really is abusive; and/or 2) don’t want to see their names in the news if they award joint or equal custody to a man who really is abusive. So what does such an overly cautious judge do? That’s right: awards sole or primary custody to the mother (even though that would obviously not prevent a truly abusive father from abusing the children).
Some courts award primary or sole custody to mothers not because of any fault or shortcoming on the father’s part, but because the court wants to award the mother more child support, so that she can use some of that money for her own support. In my jurisdiction (Utah), the more overnights a primary or sole custodial parent has with the children, the more child support that parent will receive. When there is not enough money to cover child support and alimony, some courts will award custody of the children to one parent (mother), so that she will receive more money as a result.
In 27 years of being in practice as of the time I write this, I can confirm that many courts (many, not all) far too often discriminate against men who could and should exercise joint or equal custody of their children due to anti-father or pro-mother bias, sloppy analysis and weighing of the evidence, and/or poor reasoning, not because these fathers are unfit parents, not because circumstances necessitate a sole or primary custody award to the mother, and not because a sole or primary custody award is in the best interest of the children.
Weird as it may strike you, the more like a stereotypical mother a father can show himself to be as a parent, the better his odds of obtaining a joint or equal custody award.
A fit, loving father who wants to be there as much as possible for his children cannot depend merely upon being (and proving) he is a fit and loving parent. His burden of proof is usually greater than a mother’s. It’s not fair, but it’s reality. Fathers in contested child custody cases often find themselves in the de facto position of having to prove beyond any doubt (as opposed to a preponderance of the evidence) that they are worthy of being awarded joint or equal custody of their children if they are to have any hope of obtaining a joint or equal custody award. A father in a child custody dispute may not face discrimination when the custody award is made, but he would be a fool not to prepare his case as if he will face it.
Utah Family Law, LC | divorceutah.com | 801-466-9277