When a mother and father come to me with custody issues, it is not uncommon for them to have already physically separated. The children are usually with the mother, either because the mother moved out and brought the children with her, or because the father moved out. Most fathers do not realize that by moving out, they give de facto (which is Latin for “in reality”) custody to the mother. This is a factor that a judge can consider in a custody case, and is particularly important if the father alleges that the mother is an unfit parent for some reason, perhaps for having a mental disorder or a problem with drugs or alcohol. If the father alleges this and then leaves the children with the mother, then to some degree his allegation will be muted or lose validity.
There is also a cultural or societal aspect to this issue; whether one likes it or not, the mother ends up doing the lion’s share of the work that involves caring for the children. The court will look at what is called the “primary psychological parent” and review a number of tasks they deem to define a “parent.” These tasks include cooking, preparing the children for school in the morning, picking the children up from school at the end of the day, and making arrangements for child care, play dates, and extracurricular activities. Due to the fact that mothers tend to be the ones who carry out these tasks, they have an advantage in custody cases.
Since many fathers choose to leave their children under the care of the mother, it is not necessarily the case that there is a bias against fathers in matters of custody, but more that fathers tend to unwittingly position themselves disadvantageously in these matters. With that said, there tends to be a somewhat unspoken and unwritten bias amongst some judges (especially older judges) who see mothers as being more capable caretakers of the children. Nowadays, fathers are winning more custody cases than they did in the 80s and 90s and are having more rights awarded to them than they have in the past.
Who Automatically Has Custody Of A Child When The Parents Are Not Actually Married?
The law does not address which parent has legal custody in advance of a formal child custody case being filed. Prior to a physical separation, many fathers and mothers will want to know if they can move out and take the children with them or keep the children with them and kick out their spouse. If physical separation is imminent, the parents should still attempt to go to family court and reference in their petition that the physical separation is imminent and therefore the family court should accept the case. Some judges will refuse to accept the filing of a petition if the parties are not married and still physically living together. These judges will require that they first physically separate, but by doing so, they essentially force the parents to put the cart before the horse and decide custody issues on their own before seeing a family court judge.
If there is a dispute between the parents as to who should have custody of the children, they should memorialize the details of their interactions as best as possible. If there is still a dispute, then the police may need to get involved. In some cases, the police will inform a judge that they are dealing with an emergency situation that needs to be dealt with as soon as possible. At some point-hopefully sooner rather than later-the law will evolve and specifically state that as long as physical separation between parents is imminent, then an application can be submitted and reviewed by a family court judge.
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