In 1999, research indicated that mothers received custody 91.2 percent of the time when parents went to court over their children. But that's changing, because recent studies show that fathers have as much as a 50/50 chance of winning when they contest custody. Most states have abolished the tender years doctrine, the legal premise that children – especially young children – are better off with their mothers. As a result, fathers can sometimes win custody, provided they meet certain standards equally as well as mothers.
The Best Interests Standard
As states have moved away from the tender years doctrine, they've adopted what's called the "best interests of the child" standard for determining custody. The best interests standard includes a variety of factors judges must consider to determine which parent is most likely to help their child thrive. The factors vary slightly from state to state, but none state a preference for one parent over the other based on gender. Some states, including Delaware, Minnesota and New Hampshire, have added language to their legislation specifically indicating that one parent should not be favored over the other because of gender.
Beware of Temporary Orders
Although a father's odds of winning custody should technically depend on how well he meets his state's best interests factors, custody is sometimes established even before parents go to trial. If you move out of the marital home when your marriage breaks up, and your children stay in the home with their mother, you create a status quo – your children live with her, so she has temporary custody pending your divorce. If she files a motion with the court to make this official, it's unlikely the court would force your children to move out of their existing home and into your new home when your divorce is final. Judges don't like to disrupt children's lives any more than is absolutely necessary when their parents divorce. Temporary custody orders often evolve into permanent custody terms in a divorce decree for this reason. If your wife establishes temporary custody, you could be fighting an uphill battle.
Your Role in Your Child's Life
One best interests factor involves which parent served as a child's primary caretaker when the marriage was intact. Courts tend to prefer the parent who has historically been the one to oversee homework, take the kids to doctor appointments, and bathe them and tuck them in every night. If this was you, you've got an edge. It creates another status quo because your children are probably more accustomed to being in your care than in their mother's. Judges tend to be reluctant to disrupt such a relationship without good cause.
Your Relationship with Your Ex
The best interests factors in some states include mention of how children thrive best when they have frequent and meaningful contact with both parents. The law instructs judges to consider which parent takes active steps to promote their child's relationship with the other parent. By the same token, they don’t look favorably upon a parent who intentionally interferes with a child's time with their other parent. If you're trying to win custody, it's best to bury the hatchet with your soon-to-be ex, at least where your children are concerned.
Winning custody is not just about your relationship with your children and ex-wife. Your other close associations may come into play as well. If you move out of the marital home and in with a roommate, courts may consider their moral character when deciding whether to place your children in your home. Likewise, if you become involved in a new relationship before your marriage has legally ended, and you expose your children to your new partner at a time when they're already trying to deal with your divorce, this could hurt your chances for custody as well.