Can a Man Get Custody If He Files for Divorce?

By Brenna Davis

Child custody determinations are made based on the "best interests of the child" standard in all states. Some states, including Tennessee and Arizona, provide specific considerations judges must take into account when determining a child's best interest, while others provide general principles. A man's decision to file for divorce is not a legal factor in determining child custody and both sexes are entitled to custody of their children regardless of who filed for divorce. However, the decision to file for divorce can be relevant to a child's best interests in some limited circumstances.

Child custody determinations are made based on the "best interests of the child" standard in all states. Some states, including Tennessee and Arizona, provide specific considerations judges must take into account when determining a child's best interest, while others provide general principles. A man's decision to file for divorce is not a legal factor in determining child custody and both sexes are entitled to custody of their children regardless of who filed for divorce. However, the decision to file for divorce can be relevant to a child's best interests in some limited circumstances.

Best Interests Overview

State laws vary greatly with regard to factors that are considered in determining what is in a child's best interests. However, all states consider the physical and psychological health of each parent, a child's attachment to her parents, the relative parenting competence of each parent, and the stability of the environment provided by each parent. A man's decision to file for divorce rarely affects any of these factors and the decision to file for divorce cannot, by itself, be used against the filer.

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Child Abandonment

Some parents file for divorce and then abandon their children. Men who file for divorce and then do not contact their children for an extended period of time may have trouble getting custody of their children. If, however, a man does not have contact with his children because his ex-wife interferes with visitation, this cannot be used against him. If a man has been prevented from seeing his children for several months or years, the courts may establish a parenting plan that gradually gives the man more time with his children to help re-establish the relationship. While this may seem unfair, it is generally in the best interests of children to avoid complete and sudden upheavals in their lifestyle so gradual transitions may be best in these circumstances.

Infidelity and Girlfriends

If a man divorces his wife because of his own infidelity, this by itself is insufficient to deprive him of child custody. However, if the man neglected his children because of the affair, this can be used to prove that he was not the primary caretaker and result in reduced parenting time. Similarly, many custody arrangements contain paramour restrictions, which prevent both parents from having lovers in the house overnight when the children are visiting. Judges in most states are permitted to consider the character of frequent visitors to each parents' home. If a man is dating a woman with whom he cheated on his wife, this may be used against him in divorce proceedings.

Abuse

Domestic violence and child abuse are common issues judges deal with in custody proceedings. A man who has abused his wife or children is at a distinct disadvantage in custody proceedings. In many states, there is a presumption that abusers are unfit parents. If, however, a man divorces his wife because of her abuse, his decision to divorce may actually weigh in his favor. Leaving an abusive partner demonstrates an interest in the health, safety and well-being of the children, particularly if the man made efforts to protect the children.

Child's Wishes

Many -- but not all -- states have provisions allowing children, at a particular age, to choose which parent they wish to live with. Usually the age is between 11 and 14. While these preferences are considered more strongly than the preferences of younger children, they are not determinative and judges will not place children with unfit parents. Some children may be angry with their fathers for filing for divorce and choose to live with the mother, while other children may be glad their father left an unfit mother and choose to live with the father.

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How Is Child Custody Decided In Divorce?

References

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Child Rights in Divorce Visitations in Tennessee

In contentious custody battles, both parents frequently claim to represent the best interests of the child; however, all too often, it is the children who suffer most, as parents often only represent their own interests. In Tennessee, as in all states, children have a legal right to competent caregivers who do not abuse or neglect them. Additionally, there are several laws and standards designed to protect the needs of children whose parents are divorcing. However, Tennessee recognizes that children may not always be able to make decisions that are in their own best interests, so there are no laws guaranteeing children any specific rights to determine their visitation schedules, but there are several avenues children can use to advocate for themselves.

Child Custody Rights for 12 Years & Older

Establishing child custody can be a highly contentious aspect of divorce. Although each parent may feel entitled to a certain amount of contact and authority over a child, custody decisions are made according to what is best for the child. In cases where the child is of sufficient age to understand the nature of the proceedings, his or her participation and preference might be considered by the court. Understanding how state law impacts the custody rights of your pre-teen or teenage child will help you better prepare for the custody process.

Tips for Winning a Child Custody Battle

When making a child custody determination, most jurisdictions make a decision based on the best interests of the child. Although the exact meaning of a child’s best interests varies from state to state, in many cases, the court will favor parents who actively involve themselves in their children’s lives. Additionally, courts may look positively on parents who help their children maintain a positive relationship with the other parent.

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