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Child Custody

Can a Father Take a Child Away from the Mother

Divorce is a painful and difficult process. Most of the time, it involves animosity between the parents with the children being caught in the middle of the crossfire. It’s common for a parent to want sole custody of the children for various reasons. Decades of divorce have led to the assumption that the father can’t take a child away from the mother. However, this is incorrect considering our modern view of divorce. These days, the emphasis is put into the child’s welfare and safety – if the court finds that giving sole custody to the father will ensure this, then a father can be awarded sole parental custody and parental responsibility.

Parenting Time vs. Parental Responsibility

It’s important to distinguish parenting time from parental responsibility. These are two terms commonly thrown around during divorce proceedings, but what do they really mean? Parenting time is the term now used to refer to what was formerly known as parental custody. Having parental custody means that the child or children in question live with the said parent. Presently, there is no hard and fast rule on how parenting time should be split between parents – often it is decided on a case to case basis rather than deciding on an arbitrary number. 

Having primary parental custody or parenting time does not automatically translate to parental responsibility. Parental responsibility is the ability of the parent to make significant decisions for the welfare and safety of the child. A parent can be awarded sole or primary parental custody but share parental responsibility. Similarly, a parent can be awarded sole parental responsibility but be required to share parental custody. 

When we say that a parent has primary parental custody, it means that the child is living with the parent who is awarded sole parental custody most of the time. Visits may be allowed for the other spouse who is not awarded parental custody, but the child or children remains with the parent having primary parental custody most of the time. Parental custody can also be shared or split between the parents. For example, a child may spend half of the week with his father and the other half with his mother. 

Parental responsibility can also be sole or shared. When a parent is awarded sole parental responsibility, this means that the parent has the power to make significant decisions on the child’s behalf. Such decisions may involve a child’s schooling, activities, etc. Exceptions may be made for emergency situations. Parental responsibility can also be shared. This means that both parents have a say in making significant decisions for the child and that they must agree before a decision can be made. The law vests an inherent right in the child’s mother to exercise parental responsibility, but this does not mean that a father cannot be given the same. 

Child’s Best Interest

As mentioned before, the prospect regarding divorce is much more progressive. In deciding how to award custody and parental responsibility, the courts are guided by what is in the best interest of the child. 

There are two main tenets in deciding what is in the best interests of the child. The first tenet is that a child has the right to benefit from a meaningful relationship with both parents. The second tenet is that a child has the right to be protected from physical, psychological, emotional, and sexual harm. These two tenets are carefully weighed by the court in deciding what is in the best interests of the child.

The first tenet ensures that fathers will still have access to their children, provided they do not pose a threat to the second tenet. Abuse is often the number one reason why the court will award primary or sole custody. The first tenet also gives rise to the so-called presumption of equal shared parental responsibility, meaning that unless there is proof that the same will be harmful, the court will favor a sharing of parental responsibility between parents. 

Father’s Rights 

Courts are now more progressive and cognizant of the role played by fathers in raising their children. This means that fathers now have a chance of getting the child to spend at least fifty percent of their time with them. However, it is also a common fact that most divorced fathers do not receive full custody of their children, with most of them sharing parental time with the mother. 

One possibility of the father getting full custody is when the child has been a subject of exposure to abuse due to the actions of the other spouse. Protection from abuse is the second tenet of the child’s best interest. This could mean that the court would be more inclined to award sole custody to a father if the circumstances show that the mother or other partner has exposed the child to abuse. 

Obstacles for Fathers

Fathers who are the subject of abuse allegations may find it more difficult to get shared parenting time for their children. A father who wants to get custody or parenting time with their child must deal with the abuse allegations as early and efficiently as possible. For example, if the mother has an Apprehended Domestic Violence Order against you, you might need to fight the order in court as this may be used later on to deprive you of custody or parenting time with your children. 

The fact that there are abuse allegations against the father does not automatically mean that the father will be denied custody or parenting time. There are several cases where the father faced abuse allegations but was still awarded parenting time by the court. An example is a case of Bliss (2009), where the father was awarded equal parenting time and equal parenting responsibility despite the fact that the father faced abuse allegations and had a history of violence. In this case, the court concluded that the positive factors of the father being in the children’s lives outweighed the negative factors brought about by allegations of abuse. 

Cases may be decided differently depending on the circumstances. For example, the case of Willis and Field (2014) was rather straightforward, with the father petitioning the court that the children should live with the father for fifty percent of their time, while the other fifty percent would be spent living with their mother. The mother’s position was that the children would have a more stable care arrangement if they only had one residence and were only allowed visits to their father. The court sided with the mother’s reasoning, believing that it was in the best interests of the child to have only one residence instead of diving their time in half. 

Generally however, the court is inclined to give the parents equal times as much as possible. In the case of Banning and Wylie (2009), the court granted the father’s petition to be granted an additional two nights with the children, over the mother’s objections that the father’s work would be detrimental to the children. The court found that the positive factors of the father being given equal time with the children outweighed the mother’s concern over the fact that the father had to leave early for work. 

Conclusion

In a divorce, it’s important to remember that the children’s best interests are to be put above the interests of the respective parents. The courts are guided by this principle in deciding how to award parenting time and parental responsibility. No two cases are ever alike and the court’s decision is usually brought about by several factors. The main question to ask is whether or not it would serve the best interest of the children. 

With this in mind, there has been a move to allow fathers equal time with their children and in some instances to even grant fathers custody over their children. A father will get full custody if it serves the best interest of the child. Although it is not common for a father to receive full custody for children during divorce, it’s also not unheard of. One common factor that could tip the scales in favor of the father is when there are allegations of abuse against the mother. In such instances, the court will usually be inclined to award the father full custody of the children in order to serve their best interests and protect them from abuse.

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