Divorce proceedings are difficult and one of the most contentious parts involves getting custody of the children. Mothers often get full or primary custody of their children. However, stay at home mothers may be at a disadvantage compared to working moms, considering that they often have no stable income. However, it is still perfectly possible for a stay at home mother to get full custody of the child.
Custody and Responsibility
Getting custody is different from getting responsibility for the child. Custody refers to living arrangements for the child. The term more commonly used now is parenting time to refer to custody. Custody or parenting time may be full, primary, or shared. Full custody often refers to an arrangement where the children live full time with one parent, with occasional visits being allowed for the other parent.
Primary custody refers to an arrangement where the children live primarily with one parent, but may also spend some of their time with the other parent. Lastly, shared custody is when the parents have equal or near-equal shares of time spent with their children.
Responsibility, on the other hand, is the ability to make significant decisions for a child. Responsibility is often a right considered inherent in mothers. The law and the courts recognize that it is an important part of a mother’s right to be allowed to hold significant decision making power for their child’s upbringing.
Custody and responsibility don’t often go hand in hand. Custody may be given primarily to one parent with responsibility being split between the parents. Custody may also be shared while responsibility is vested solely with one parent. The point is that every case is different and the decision often rests on what the court believes to be the best interest of the child.
Best Interest Rule
Our modern-day view of divorce and custody has shifted from emphasizing parent’s rights to emphasizing what is in the best interest of the child. The courts are guided by two main tenets in deciding what constitutes as being in the best interest of the child. The first tenet is that a child has the right to benefit from a meaningful relationship with both of their parents. The first tenet is mainly responsible for the shift in thinking towards shared parental custody and responsibility. As much as possible, the courts will give each parent time to spend with their children, recognizing that the presence of each is integral and important to a growing child.
The second tenet of the rule is that a child has the right to be protected from physical, psychological, emotional, and sexual harm. If there is any evidence that such an arrangement would expose the child to physical, psychological, or sexual harm then it is not considered to be in the child’s best interest. As a rule, the second tenet may overrule the first tenet. Even though shared parenting time is preferred, it is not followed if it means exposing the child to harm. If there are allegations or proof of harm towards the child, then the court will be more inclined to award sole or primary custody to one parent only.
Other Factors to Consider
The child’s best interest is the most important factor to consider in custody proceedings, but it’s not the only factor taken into consideration. Other factors may include:
- How the child feels about the proposed custody arrangements
- How willing both parents are to encourage a continuing relationship between the child and the other parent
- The parents’ and child’s current lifestyle
- How well the parents can provide for the child’s needs
- What both parents think about parental responsibilities
- Current family violence orders or evidence of family violence
Steps to Take
As a stay at home mother, there are several steps you can take if you want to get full or primary custody. The primary reason why stay at home mothers can’t receive full or primary custody is that they don’t have enough financial capability to support themselves and the children. In order to address this, it’s good to start looking for a job as soon as you file for divorce. The court will be much more convinced in your efforts to keep your children if you’re able to show that you’re doing the best you can to bring a paycheck home.
It’s also important to get legal help early on. Some may be tempted to do the whole thing on their own, or do their own research, but this can actually do more good than harm. A professional will be able to help you take the necessary steps you need to do in order to get full or primary custody. If your budget is stretched thin, or if there is simply no money, there are many legal aid programs available for help.
Mothers are also discouraged from bringing in new partners early on in the proceedings. At this stage, before custody is awarded, it’s important to show the court that you’re able to provide a safe, stable, and loving environment for the children. A new partner could be damaging to this as children may not have time to adjust to the said partner. The court will likely be less inclined to award custody if it believes that the mother’s living arrangements do not foster a nurturing and stable environment.
It also helps to be open about the prospect of visitation for the child’s father. The animosity between the parents rarely works in favor of custody applications, so it’s important to show to the court that you’re able to work with the father regarding parenting time. As mentioned earlier, the child’s best interest demands that both parents at least get to play a part in their child’s life. Agreeing to visitation can help your case for full or primary custody.
A history of abuse and violence should be addressed as early as possible. A mother has the right to apply for an apprehended domestic violence order, which can help prevent someone from committing future acts of violence against the protected person. An abusive partner may trigger the court to award sole or primary custody to the mother so this issue should be addressed early on as possible in the proceedings.
If the father has prevented the child from seeing the mother, then the mother can apply for recovery orders. Recovery orders are a part of a mother’s rights. It is usually in the form of an application that contains an affidavit. The said affidavit should contain:
- Where the child usually lives
- Previous court hearings and orders
- The circumstances of when the child was removed from or not delivered to the mother’s care
- Ideas about where the child might be
- Why it is in the best interests that the child be returned to the mother
Lastly, appearing and showing up in a professional appearance could help your case for full or primary custody. While it is true that appearances shouldn’t matter before the law – it won’t hurt your chances if you make an effort when you’re appearing for a judge. Judges are also human and they may be more inclined to grant the petition if they see the mother as a professional and responsible human being.