The Father's Custody and Property Rights in a Divorce

by Elizabeth Rayne
Custody laws do not automatically favor the mother or the father.

Custody laws do not automatically favor the mother or the father.

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In the last few decades, gender has become mostly irrelevant in divorce cases. When it comes to child custody, courts are primarily concerned with what is in the best interest of the child, while property division is based on ownership and economic factors. However, the laws vary by state, and the terms of the divorce are determined by the facts of a particular case.

Custody Overview

In most cases, courts will award a custody arrangement that allows both parents to spend time with their child to build a meaningful relationship. Actual terms to describe the parenting arrangement, such as "custody" or "parenting time," can vary among states, but generally, courts differentiate between physical and legal custody. Physical custody refers to where the child lives, while legal custody refers to which parent makes decisions for the child. Parents might have joint legal or physical custody, or one parent might have sole custody. Generally, the mother and father have equal rights to parenting time with the child -- and some states presume that joint custody is in the child's best interest unless the court finds evidence that proves otherwise.

Best Interests of the Child

Every state in the country has overhauled any laws that once provided preference for mothers to have custody over fathers. At the time of publication, laws are gender-neutral and provide that a court should make custody determinations based on what is in the best interest of the child. Courts will consider any evidence that demonstrates what is in a child's best interest, such as the needs of the child and the ability of each parent to meet those needs. As such, even though only a few states actually address breastfeeding in their statutes, a judge in any state can consider breastfeeding when establishing parenting time. Depending on the laws of the state, the court might also consider the wishes of the child.

Property Distribution

When it comes to property division, most states follow equitable distribution guidelines, while a minority of states are community property states. In either case, courts generally only divide community property, also known as marital property, which is property acquired during the marriage. Anything owned before the marriage or acquired by inheritance or gift by one spouse during the marriage is usually considered separate property and not divided in divorce. In community property states, all community property is divided equally, or 50/50, between the spouses. On the other hand, equitable distribution states consider a number of factors to determine a "fair" distribution of property, which may or may not be an equal division. However, in both community property and equitable distribution states, if minor children are involved and one parent is given primary custody, the court might award the marital home to that parent in an effort to avoid uprooting the children. If this is the case, the court can award the non-custodial parent other marital property to offset the value of the home.

Equitable Distribution Factors

Equitable distribution states will consider the financial resources of each spouse to determine how to fairly divide marital property, such as a spouse's income, earning potential and any separate non-marital property. However, the division does not take the sex of either spouse into consideration. Although men might earn more money on average, the court will make a determination based on the facts of a particular case.