How fathers who gain custody can keep custody

Posted Wednesday, December 13th, 2017 by Gregory Forman
Filed under Child Custody, Not South Carolina Specific, Of Interest to General Public

For reasons having nothing to do with sexism, more mothers than fathers have custody of their children. Often when fathers get custody they have never had the role of equal or primary caretaker of their children. If they gained custody because the mother was unfit (and remains unfit) there is little risk of mother getting custody back. However, if they gained custody due to the children’s custodial preference or because the children were having problems that mother couldn’t address (or if an unfit mother gets fit), there’s some chance that the mother will seek to regain custody.^[1]

There are common patterns that distinguish cases in which fathers keep custody from cases where mothers regain custody. Experience has shown that the following behaviors are instrumental to fathers keeping custody.

1. Address the problems that led to custody being changed

A common reason custody is changed is that the child is having serious problems that the custodial parent is either causing, failing to address, or ineffectual in addressing. In these circumstances, the court changes custody in the hope that other parent will remedy these problems. Assuming that parent can fix these problems–without creating new ones–that parent is likely assured of keeping custody.

But to remedy the problems that parent first needs to address them. When custody is changed due to medical neglect, the court expects the new custodial parent to address the child’s medical issues. When custody is changed due to educational issues, the court expects the new custodial parent to focus on the child’s schooling. When custody is changed due to behavioral problems, the court expects the new custodial parent to work on changing the behavior.

A passive approach by the new custodial parent means these problems won’t be remedied (unless they inexplicably fix themselves) and routinely leads to the prior custodial parent seeking to regain custody. When they do, the first question the court will want answered is what the custodial parent did to address the problems. Being informed that nothing was done will inflame most judges and lead to custody being returned.

Lesson: If you obtained a change of custody because you claimed you could fix the child’s problems, you’d best fix the child’s problems (and, failing that, you’d best show a lot of thoughtful effort to fix them)

2. Be the primary caretaker

Whether it’s culture or biology (I suspect it’s a bit of both) most fathers see a large part of their parenting role as being a provider of financial stability for their children. However when they obtain custody, they must now take on the caretaker role. Mothers often limit and defer career goals to take care of their children. Custodial fathers should expect to do the same.

There’s a temptation for fathers to delegate that caretaker role to their own parents or spouse while they continue to be a financial provider. Often, it’s easiest to delegate the care taking responsibilities while remaining a financial provider because that’s the role they’re familiar with. This temptation is strongest when the father has new children with the new spouse. The necessity of cutting back on work–which likely means cutting back on spending–in order to take care of children, doesn’t seem as obvious to men as it does to women.

However when the court awards a father custody, it generally expects the father to be raising the child. Delegating that responsibility to third parties will likely inflame the mother–who rightly wonders why the father should have custody when some non-parent is raising her child. A fit mother’s argument that she should regain custody because some non-parent is actually raising the child has some appeal. When the court awards a parent custody, it expects that parent to be the primary caretaker.

Lesson: If you want to keep custody, raise your children

3. Support the mother’s role as a parent

If this is the first time that father has been the primary caretaker of the child, it means that mother has some history as the primary caretaker. Losing that role can be devastating to that mother’s self-conception. Prior to custody being changed, it was likely the mother buying the children’s clothes, arranging haircuts, and planing and taking the children to routine medical and dental appointments. The mother likely made the children’s meals, handled their grooming, and tucked them in at night. Much of her identity may have been based on this role as primary caretaker. While she likely didn’t do the best job–custody did get changed–devaluing her effort and her role as the children’s mother simply increases her desire to regain custody.

When custody is changed, the new custodial parent gets to make most of the parenting decisions and do most of the parenting tasks. However a mother who feels cut out of the children’s lives is a mother who is more likely to seek to regain custody. Allowing the mother some input into routine decision making (or even allowing her to make some minor decisions on her own) lessons the sense of loss in having custody changed. Offering a non-custodial parent a bit of extra time and being flexible on visitation schedules engenders good will. Making sure the children’s care providers know the mother’s identity, provide her the same information they provide the father, and are open to reasonable communication from her, reduces a non-custodial mother’s fear of losing her relationship with her children.

Encouraging the children to maintain a good relationship with their mother not only decreases the likelihood of her seeking a change of custody, it insulates a father from claims of parental alienation. In contrast, a father who habitually undermines mother’s visitation with the children or deliberately limits her role as a parent should anticipate a change of custody being sought and runs a risk of it succeeding.

Lesson: If you’ve “won” custody, be a gracious winner

4. Stepmom is there to assist, not to parent

The surest way for a change of custody to a father to lead to domestic disharmony is to have the stepmom and the children in conflict. Often this occurs because the father is delegating too many parenting duties to stepmom. Perhaps the worst such behavior is when father, to avoid conflict with the mother, requires the mother to address parenting issues with the stepmother, while he avoids communication with the mother. Requiring a mother to go through the stepmother to get information about her own children infuriates most mothers.

Further, allowing stepmothers to do too much of the parenting will lead to conflict between the children and the stepmother. Discipline that a child might accept from a parent, is often intolerable when coming from a stepparent. When the children hate the stepparent, expect a change of custody to be sought.

It’s the custodial parent’s job to parent the children and to communicate about children’s issues with the other parent. Delegate those roles to a stepparent and angry children and co-parents are the natural result. A choice between relinquishing custody of one’s own children or separating from one’s own spouse is a choice to be avoided. Yet, when one delegates too much of the parenting to the stepparent, that’s a common occurrence. It’s much easier to keep custody when the children like the stepparent and the other parent doesn’t hate her.

Lesson: A stepparent in conflict with the children or the other parent is a liability in any custody case

5. Think well of the mother (and make sure the adults in your household do too)

By the time one’s children are old enough to speak, they are likely to be reporting much of what they hear in one household to the other household. In their father’s house, all they should hear about their mother is what a wonderful mother she is and how much she loves them. If they hear otherwise, they are likely to report that to the mother, who may eventually seek a change of custody to remedy that situation.

It’s not enough to merely speak well about the mother–children pick up on attitudes. They have finely tuned antenna for discerning when one person doesn’t like another person (think middle-school). If father, stepmother, or other adult members of father’s household don’t think much of mother, they will know it–and they will tell mother about it.

One can choose to focus on others’ positive attributes. One can choose to focus on others’ negative attributes. When one has custody, there is no reason to focus on the co-parent’s negative attributes (one already has custody) and focusing on that parent’s positive attributes will engender a feeling in one’s children that “daddy likes mommy.” This makes the children happier. Even if it doesn’t make the mother happier, it will at least make it less likely that she seeks to regain custody, and limits her ability to claim parental alienation if she does.

Lesson: Be nice to the other parent and good things will happen

It’s sad to see one’s efforts to obtain custody for a father go for naught because that father did things that led to custody being returned to the mother. Fathers who’ve done the things recommended above are less likely to face a request to return custody–and much less likely to have that request succeed. Fathers who did the opposite have often found they expended treasure and effort to obtain a result they could not keep–and now had to face a custodial mother angered by her temporary loss of custody.

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[1]Nothing prevents this advice from applying to mothers who gain custody of children from fathers but, in 24 years of practicing family law, I’ve yet to see a mother gain custody of a child from a father where she has not previously been an equal or primary care provider of that child.