Against all odds: representing fathers in custody disputes.

There are three kinds of fathers who fight for custody. The first is one who has been actively involved with his children - possibly even more so than the mother has been - and has a long history of parenting. Few people would argue against this father's having primary or joint custody of the children.

The second father is one who has been a good parent but only in the "traditional" sense. He has spent about 45 minutes to an hour a day with his children in a very loving relationship. The mother has stayed at home and spent about 11 hours a day with the children, or she has worked outside the home, but when she has come home, she has taken the "second shift," involving herself totally with the children. In a perfect world, these fathers would be awarded a very large bulk of parenting time.

The third father is one who has not been involved with the children and may or may not have good motives in making a request for sole or primary custody. This is the father who may say he wants to fight for custody because he thinks he'll get a better deal in the distribution of property from the marriage.

This article will focus on representing the first two kinds of fathers - those who, in most cases, could and should be awarded primary or joint custody of the children.

There are no winners in a custody dispute - only survivors. Tragically, however, custody litigation is not designed for survival or for resolution of the underlying rift between disputing parties. Author Douglas R. Page writes, "Custody litigation does not heal the problems that led to the divorce - it makes them worse." (The Fitness Factors, How Courts Evaluate Fathers Who Want Custody, 15 Fam. Advoc. 47, 49 (1993).)

Case law indicates that custody decisions should serve the "best interest of the child." But often the custody case, if not properly handled, serves no one. Proper representation of the father who has been actively involved with his children should, with appropriate guidance, result in an award of either primary custody or a joint parenting schedule that satisfies the sometimes conflicting needs of both parents and the children.

Until the 1980s, minor children were usually awarded to mothers under the Tender Years Doctrine. Unless the father could prove to the court that the mother was "unfit," rarely did fathers leave the courtroom with custody of their children. (See generally Allan Roth, The Tender rears Presumption in Child Custody Disputes, J. Fam. L. 423 (1977).) With the advent of equal rights amendments in various states in the early 1980s, courts became cognizant of the fact that automatically awarding children of tender years to mothers was an impermissible, gender-based award.

Consequently, the "best interest of the child" standard became the appropriate one, and the "laboring oar" was no longer presumed to be in the hands of fathers. Both parents ostensibly came to court on equal footing.

Still, a natural bias that arises in custody, disputes - that children are best off with their mothers - stares Dad in the face the moment he opens the courthouse door. Additionally, since the mother traditionally has carried out her part of the "social contract" by frying up the bacon while Dad has carried out his part by bringing it home, the argument has been that the status quo should be maintained for the children and that its continuation requires the court to award primary custody to Mom.

What is a judge to do when faced with what appears to be two equally fit parents, each of whom now wants primary physical custody? How does counsel convince the court that Mom should not leave the courthouse with the child just because it has always been that way?

The break with the traditional Tender Years Doctrine occurred in 1972. (See, e.g., Parikh P. Parikh, 296 A.2d 625 (Pa. 1972).) In many cases, however, it has been replaced by the assumption that if the mother has always been the primary parent and the children are doing well, why should the parenting schedule change now? The rest of this article will focus on how to convince the court to change its assumption.

Preparing the Case

The first step counsel should take in representing a father is to determine into which of the above three categories he falls. With a father who is and has been actively involved with his children, pre-trial preparation is critical and can make all the difference between winning and losing.

Gathering demonstrative evidence. The actively involved father should immediately begin keeping track of his child-centered activities. A diary or calendar should be kept religiously well before he gives any testimony. (See Lynn Hecht Schafran, Gender Bias in Family Courts, 17 Fam. Advoc. 22 (1994) (discussing stereotypes surrounding mothers in custody disputes).)

Although working fathers usually don't concern themselves with tracking the daily routines and activities of the children, the spotlight of the court should now prompt them to do so. For example, where they have active contact with the children in the morning before work or regularly drive them to school, a note on the calendar will document this involvement. When fathers attend PTA meetings and actively involve themselves with school functions, that, too, should be noted. If Dad is the one who takes the children to the doctor, he should write this down.

For other activities, such as helping with homework, clothes shopping, or other routine tasks, he should note them either in diary form or on the calendar. If these records are kept contemporaneously with the event, rules of evidence likely will permit their use in the courtroom as demonstrative evidence.

Demonstrative evidence should be gathered before court proceedings. Pictures of Dad and the children interacting are helpful. "A Day in the Life of the Child" videotape can be edited and presented to the court as another piece of evidence showing details of the warm and loving relationship between Dad and the children.

If a child has written a letter to Dad expressing love and concern, or if there are cards from Father's Day or other occasions, those should be gathered to present to the court. Pictures of Dad at school activities or coaching the soccer team are also very helpful. These images can go a long way toward undermining any claim that only mothers can parent children.

Where Dad has been the one to help children with their homework or projects, the report cards become especially important. Also, Dad should be sure that he either signs or co-signs every report card during every marking period and signs off on the homework.

Initial interviews - during which a history of the father's involvement is taken - are important in guiding the attorney's selection of demonstrative evidence. For example, if the attorney learns the father has been active at the child's school, evidence may focus on team pictures, sports awards, or school events flyers. Everything that shows Dad actively involved will be necessary to win these cases.

Choosing lay witnesses. Those able to testify about the father's relationships with the children are important witnesses to present at trial. Once again, the initial interview md history-taking can lead counsel to these people.

Most courts assume that dads will be actively involved math the children on the weekends. Consequently, witnesses able to testify about how Dad took his son to the Saturday ball game will be helpful but will not seal a victory.

Rather, calling the mothers of his children's friends to testify about his continued after-school involvement will be significant. If these mothers can testify that they have brought their children over for dinner with the subject child and Dad has done the cooking, that will go against stereotype and be helpful. Parents from the community who can testify that Dad was one of the only fathers to attend school Parents' Day or that he helped plan the school fair will get the court's attention.

Selecting expert witnesses. Testing by a competent psychologist or mental health professional may be important to a father's case. Before trial, counsel should select an impartial expert who is not only known to the court as a good forensic expert but who has no bias against fathers' sharing or having primary custody of a child.

This expert should not only meet the father and his children but should also have an opportunity, to watch them interact. These observations should occur in the professional's office as well as at the father's home. The examination should conform with the American Psychological Association's Guidelines for Custody Evaluations in Divorce.

Home visits are extremely important in sharing with the court information about how the father would parent the children full time if given the chance. This expert witness can testify as to the existence of a child-oriented home, decorated with children's artwork - a home that affords privacy for the children and safe play areas both at home and in the community.

If, after observation, the psychologist indicates that the father shows deficits in parenting, a recommendation should be made to the client that he take parenting classes, often offered at high schools and churches.

Choosing special witnesses. Teachers of school-age children arc an important group to call for testimony where the father has been involved in school activities. For these witnesses to be effective, the father-client should have been talking with the teachers on a regular, but not intrusive, basis.

The teachers or program leaders at church or at synagogue, if the children are active there, may also make good witnesses. If the children are old enough to attend church, they should go with their father to show the court that Dad is not only telling his child how to behave but is setting a good example.

Additionally, the father should be actively involved with his children's friends. He should invite these children to his home and involve them with his child in activities. Sleepover dates are effective to show that Dad can handle supervising groups of children.

The Trial

Determining the order in which witnesses are to be called is important. If the expert's report is strong, then the expert may be a good lead-off witness. Also, accommodating teachers' schedules is a good strategy. They may resent not only being involved in the case but also having to sit around waiting to be called. Family members can be used to fill in the spaces where the schedules of paid witnesses must be accommodated.

The most important witness at trial will be Dad. Counsel may want to call the father last, to "bat clean up," because he will have an opportunity to hear what other witnesses have said. Anything they may have forgotten to say on Dad's behalf can be brought up in his testimony.

In preparing the father for testimony, counsel must already have elicited detailed information from him at the initial interview. His testimony must not bore the judge to death, but it certainly should include details of his parenting history.

This is Dad's opportunity to explain to the court why he should be the primary parent. Some courts may be biased against fathers' having custody of young girls. To overcome this bias, the father must be prepared to testify about his ability to discuss sex, puberty, and menstruation with his daughters at the appropriate times.

Often, fathers are caught on cross-examination, when they do not know details, such as the names of their children's friends or the sizes of clothing that their children wear. These specifics should be reviewed with the client. Preparation would also ensure that the father knows not only the names of his children's friends but also the names of their parents and the activities in which the children like to participate along with their buddies.

Parenting milestones are also important issues for inquiry. For young children, often the adversarial or court-appointed psychologist will question the parents about the time at which their children walked or talked or got their first teeth. Fathers should be prepared to provide all of this information if they were actively involved with these aspects of their children's lives.

Where fathers have not had primary parenting time but rather a visitation schedule before trial, counsel and the client should review the opportunities the father has had to be with the child. It is important that the father use every opportunity to see his children. Often, cross-examination of the father will show that he has brought his children back early from weekends or faded to pick them up for visitation because business engagements kept him from being able to use his custody time. This lost parenting time is often held against a father to show he has not been willing to place his children high on his priority fist.

Where the father is remarried or has a significant other, this woman should be very much a part of the custody ease. The child will be exposed to this potential stepmother, so she should be called as a witness and presented in the best possible fight.

Paramount in her testimony will be the level of respect she shows for the special time that Dad needs with his children. On the other hand, where it appears that the father is deferring the care of the children to his new life, it might seem that he is setting up a custody case between the biological mother and the stepmother. Consequently, counsel must be sensitive in determining how to present a current or potential stepmother to the court. She should not be introduced as a replacement for the mother.

Where both parents are employed outside the home, counsel should also call as a witness my child care personnel with whom the father has made arrangements for care while he is at work. This baby-sitter should be someone with sufficient credentials to care appropriately for the children. The baby-sitter also should not appear to be taking over the child care functions that the father claims he wishes to perform at the time he files his custody action.

Any baby-sitter should appear to respect the mother and to care for, love, and know the children. If this caretaker is a parent or sibling of the father, that can be used to the father's advantage, especially if this person has been actively involved in the children's lives since birth or their early years.

There is nothing wrong with proffering a grandma as the child care provider, providing this does not appear to be a method of squeezing the mother out of the picture.

Parenting Plan 

Most important, the courts are very concerned with which parent is likely to provide the other with access to the children. Where Dad is asking for primary custody, he should come to court with not only a custody schedule but also a plan as to how Mom can be involved in the lives of the children.

No matter how often Dad likes to think that he can replace Mom, no parent can replace the other parent in any child's life. A proposed custody schedule and a plan for sharing activities, holidays, and special time with Mom would go a long way toward convincing the court of Dad's respect for his children's relationships with their mother.

Key questions the father should be prepared to answer are -

* Why do you think you are the better parent?

* What are the good characteristics of the children's mother?

* Why do you feel that despite those good qualities, you would be the better parent to have the majority of the parenting time?

If the father is prepared for these questions, the court should lean in Dad's favor, providing he is able to show his capability to parent his children.

Lynne Z. Gold-Bikin, an attorney with the law firm of Gold-Bikin, Clifford & Young, in Norristown, Pennsylvania, is the 1994-95 chair of the American Bar Association Family Law Section. Michael T Flannery is an associate with the firm.