I’ve represented a lot of men in custody and divorce cases. Fathers often want (and deserve) sole or joint custody of their children. A problem arises, though, if they’ve been the primary breadwinner, allowing the mother to stay at home with the children. There are more women who are becoming the primary breadwinner, but for purposes of this blog, I’m focusing on fathers. However, the principle applies to whomever is the primary breadwinner while the other parent is a stay-at-home parent.

The problem is that when the judge is determining how to award custody, she looks at who has been the primary caregiver of the children. She’ll look at things like who got up with the infant during the night, changed diapers, fed them, who takes them to the doctor, who’s involved in parent-teacher conferences, who helps with homework, who gets them to/from school and other activities, and who is overall involved in their day-to-day lives. Do you know their teachers names? Know what subjects they take in school? Know what video games they like? Know friends’ names? In a situation in which the mother is a stay-at-home mom, she’s of course doing the majority of these things. That was kind of the deal wasn’t it? So, when the Father asks the judge for custody – he’s penalized for not doing those things. His absence from the home is used against him as to why he shouldn’t have sole or joint custody. Yet, it was his absence that allowed for the mom to stay at home. And it was the mom staying at home that allowed for the father to invest more time at work.

However, on the financial side of the divorce, the Father is expected to equally share what he has financially earned throughout the marriage. He’ll have to share retirement, bank accounts, property, and other things of monetary value – all that he earned. There’s not even a question as to whether those financial things gets divided and, unless fault on someone’s part (adultery, etc.) it will almost always be an equal split. No one questions an equal split if there’s no fault.

So, if the Father is penalized for being at work and away from the children, why shouldn’t the mother be penalized for being at home and not providing financial support? Don’t read from this that I think stay-at-home moms should be penalized. Stay-at-home moms give tremendous value to the family – absolutely, no question about it – and deserve an equal split in finances unless there’s fault. The point is, the father shouldn’t penalized in custody decisions simply because he was necessarily unable to do a lot of the child care because he was the one financially providing for the family. It was the father’s job that payed for their clothes, their shelter, their food, their activities, their toys, and whatever else was enjoyed by the family. It is simply not fair and equitable to fathers to use their absence against them in these custody decisions. It took both parents to make that child and raise the family. It took jointly working together to ensure that the children were provided for – whether that was through finances or day-to-day living. When the marriage is dissolved, it will still take both parents to raise the children, albeit in separate households.

If the case involves a father who is the primary bread winner and was also not involved in the children’s lives when he was home, that’s another story. My concern is for the father who is the primary breadwinner and who is involved in their children’s lives when not at work – who helps with homework, who attends sporting practices and games, who attends scouts, who gets involved with their children when their work schedule allows.

Fathers and children deserve better than to fall victim to this Catch-22. Any father who has been involved in his child’s life deserves a chance at custody.


(no representation is made that the quality of legal services to be performed is greater than those performed by other lawyers)

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