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Custody Rights of Fathers: What You Need to Know

Custody Rights of Fathers

Many fathers, when in a divorce or custody dispute, ask questions such as: What are custody rights for fathers? How can a father get full custody? What are the chances of a father getting 50/50 custody? What are a father’s rights when the mother withholds the father from contact with a child? What are a father’s rights when the mother alienates a child?
The answer to questions about how to win child custody for fathers is simply this: there is no solution that will work for everyone. Many parents in custody cases hope for a bright-line magic bullet formula for obtaining custody, but there is not.
Why? Most state custody laws say that a court is to decide custody based on “the best interests of the child.” That, of course, is a vague standard, and it is intentionally vague. Most state legislatures believe that a judge, looking at an individual custody case, is in a far better position, to make a child custody order, than a legislature who does not know the specifics of any case.
A few points, though, are worth noting:

Gender of Parent

Many states prohibit courts from preferring a parent because of the gender of that parent. Prior to the 1980s, many states followed the “tender years doctrine,” which preferred awarding children to the mother. This is no longer the case.

Felony Charges of Parent

In many states, there are certain persons who may not obtain custody of children. These persons include convicted violent criminals or abusers, registered sex offenders, or alcohol- or drug-dependent persons. However, most people do not fall into a category that would automatically disqualify them from obtaining custody.

Father’s Right to Settlement Agreement

In most court cases, you will have the right to enter into a settlement agreement with the mother regarding custody or visitation. If you enter into a settlement agreement with the mother, the judge will not have to make any orders at all. The judge may sign the settlement agreement, after which the settlement agreement becomes a legally binding court order, and a court can enforce it.
While you will probably have to give up certain rights in order to make it possible to enter into a settlement agreement, you will likely be more satisfied with the results of a settlement agreement than you will be with the results of a judge’s ruling. In my experience as a divorce/custody lawyer, in cases where a judge made an order, the judge almost always ordered results that neither parent wanted and were not in the best interests of the child. If you go before a judge, you will be asking a person who has never met you or the child to direct your child-rearing. The result will likely be a disaster. While a judge may be better able to determine child custody than a legislature, you will be far, far better at determining child custody than a judge will. I know judges who will readily tell you this. 
If the judge signs an order, or if the judge signs a settlement agreement, make sure that you follow the order or agreement. If you do not follow the agreement, the judge may hold you in contempt of court, and you may pay a fine or go to jail.

Father’s Right to Mediation

Mediation is often an effective way to enter a settlement agreement. In mediation, both you, and the mother, go before a neutral third-party called a mediator. The mediator is not like a judge; he cannot order either party to do anything. But, the mediator will try to guide you to a workable agreement. For more information about mediation, view this article here. (This blog is about mediation in Oklahoma, but much of the information is also true in most other states.)

A Father’s Rights When the Mother Withholds Contact

What can you do if the mother withholds you from contact with the child? If the court has entered an order or signed a settlement agreement, and the mother does not allow you to have the contact with the child that the order allows, you may take the mother to court for contempt. If the court finds her in contempt, she may pay a fine or go to jail. But, if the mother can show that she had a valid reason – such as child abuse or neglect – for withholding contact from you, then the court may let the mother off the hook. 

Word of Advice to Fathers Seeking Custody

Because every custody case is different, and every state has different custody laws, you should speak to a competent custody attorney in your state for the best advice.
There are no hard-and-fast ways of increasing chances of obtaining custody. Nor should there be. Custody, in my opinion, should be awarded based on the best interests of the child. My only final tip would be to make sure that you always act in the best interests of your child.

Attorney Kyle Persaud is the founder of Persaud Law Office in Bartlesville, OK, where he has years of experience handling child custody cases and other family law matters. Mr. Persaud holds a B.A. from Oklahoma Wesleyan University and a J.D. from the University of Tulsa College of Law.