You and your wife have come to the conclusion that your marriage has reached a point of irreconcilable differences. Now you are faced with the unavoidable issues of divorce and child custody. Why would it be best for the mother of your children to be given primary custody of your children?   As a father, you honestly want what is in the best interests of your children. In order to answer this question, it is imperative for you to understand what Judges view as important criteria for the best interests of children. After all, it is the Judge that makes the final decision in child custody cases.   An important variable for the Judge’s consideration is the age of the children. There are no Tender Years Doctrines in the United States, but the younger the children are, the more the Judge leans towards the mother to retain custody. If the child is an infant or nursing, it is difficult for a Judge to give father joint physical custody, however it may be appropriate for a father under these circumstances to have frequent and continuing contact. As children get older, the non custodial parent’s rights to seek joint custody increase. As the children approach the age of 12, the Judge may interview the children and consider their preferences when assigning custody.

The living situation can be a major determining factor for custody. Whoever retains possession of the family home is usually is granted primary custody. Conversely, whoever is granted primary custody is usually granted the family home. Judges feel that if the children remain in the family home, there is a greater degree of continuity and stability. If you as a father are crashing on the couch of a friend while you are getting your life back on track, this makes it challenging for the Judge to make you the primary caregiver. However, the closer you live to the mother of your children, the better chance you have of getting split custody. A Judge might feel that you will be more involved in your children’s lives if you live closer to where they live and go to school.

When making an initial order, the Judge will review the role and involvement of the parents during the marriage. Normally this will include trial separations. Do not lose hope. Even if you were not very involved with your children during the marriage, but you genuinely show a degree of involvement during the separation, the judge will consider this favorably.

If there is a request to modify an order, then the Judge may look to see if both parents are doing their best to cooperate with visitation schedules and are not bad mouthing the other parent in front of the children. The court frowns on this type of interference and may rule against the more uncooperative parent.

To restate what has been previously discussed: in many cases if the children are 12 or older, the Judge will interview them to determine what their preferences are for custody and visitation. It would not be recommended that you try to coach the children as to what to say. A Judge can see right through this type of deception.

Stability and continuity are major factors to be considered for the best interest of the children. The spouse that can demonstrate status quo will be favored in a child custody suit. The spouse that presents more major changes for the children is usually not preferred. This includes emotional stability.

Obviously, if there has been any abuse or neglect regarding the children, you can rest assured that you will be severely limited in seeing your children.   If this is present in your marriage, then there would be no doubt about who should have the custody of your children.

In conclusion, the following characteristics of the mother of your children would be the best indicators that she will be appropriate for being granted custody:

  • The children are young and she has been the primary caregiver since they were born.
  • The mother retains the family home.
  • The mother is cooperative with visitation schedules.
  • She provides stability and continuity.
  • There have not been any incidences of abuse or neglect.

When is the best time for you and your spouse to come to a decision about which one of you should have primary custody? If abuse, neglect or emotional instability are not factors in your situation and the other factors could easily be resolved but you still are not sure which of you are able to provide the best interests of the children, what should you do? Remember, the Judge not only looks at elements during the marriage but also looks at the relationships between you, your spouse and the children during the separation. If this is the case, maybe a trial separation is a good solution. Before jumping into divorce and custody suits, why not take a breather and agree on a trial separation? This would give you time as their father to establish yourself close to the family home and continue to be involved in your children’s lives. This will allow you to facilitate low conflict with your spouse and observe how the children react to the separation, plus analyze whether or not you should agree for the stay at home mother of your children to have primary custody. Just because you and your wife can no longer live together does not necessarily mean that she cannot be a good mother with you close by to reinforce the needs of your children.

It would be an especially good idea that if after a separation and while you are still not confident about a decision of child custody, to consult a law firm like Desai Family Law that specializes in child custody. The law firm will be more objective about your current situation and will be familiar with lesser known factors that the courts consider. Remember that the final decision will consider the interests of the children.


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