Differences in Representing Fathers Seeking Custody of Their Child
Copyright © 2004 Shaw Law Firm, LLC
I’ve represented roughly equal numbers of mothers and fathers in child custody disputes. In my experience you have to approach the case differently depending on whether or not the mother or the father is the client. Now theoretically, and as written in the law and propounded by the United States Supreme Court, the gender of the parent is not suppose to be relevant in determining the best interest of the child and to which parent the child’s custody is to be placed. In practice, however, we all know this is not the case. Judges vary as to their leanings on this issue, but in general there are certain issues unique to fathers in custody disputes, and steps that need to be taken that are not usually necessary in representing mothers in custody cases.
Many of these issues are culturally embedded. As an example the movie “Three Women and a Baby” would hardly qualify as a comedy unlike the hit comedy “Three Men and a Baby.” The fathers create comical mayhem and the mother returns to bring order to chaos. In representing fathers it is imperative that these cultural stereotypes be taken into account and banged out of the judge’s mind. This requires taking nothing for granted. When the father is the client you have to build him up from scratch in front of the judge and demonstrate the father’s parenting skills. Even the littlest aspects from knowing how to diaper, care for a skinned knee, etc., must be covered unless the judge assumes that the father simply is not competent or capable of it. This is evidence that is usually taken for granted for mothers but cannot be taken for granted when representing a father in a custody case.
In addition, fathers bring unique aspects to the parent-child relationship that mothers do not. If it can be established that the father can indeed care for the child as well as the mother (whether or not this was the actual parental role during the marriage) the issue can then turn to the unique aspects that the father brings to the parent-child relationship that the mother simply cannot bring. Understanding and articulately presenting these issues also requires an understanding of psychology and the use of experts that most attorneys who do not devote their practice to this area do not have. The case strategy will vary from case to case, but it is a thorough understanding of these issues that is vital if the father is to prevail in a custody case.
The Mia Farrow vs. Woody Allen custody trial is a great example of how even the little things can be disastrous to a father if he is not properly prepared. There is no doubt that Woody Allen had expensive and competent legal counsel at the trial. Nevertheless Woody Allen got torn apart when he was cross-examined as it was revealed that he did not know the most basic things about his children’s daily activities and personal preferences. Woody Allen was simply not properly prepared to contest the case. Given his other character eccentricities, it was even more imperative that he had been properly prepared for the trial and even the little details not taken for granted.
The good news for fathers in Georgia is that the “tender years presumption,” or the “primary caretaker element,” is not the law of Georgia. These presumptions make it very difficult for the primary breadwinner in the household to prevail absent egregious circumstances. Georgia operates under the best interest of the child standard, and despite cultural bias, fathers that do contest custody can and do win custody cases. If you have any questions don’t hesitate to contact us. Child custody disputes, along with the other areas of family law are our only area of legal practice.