Expert Tips on How Fathers Can Build a Custody Case

Father and son having breakfast in kitchen
MoMo Productions / Getty Images

Historically, when parents went through a divorce, child custody was thought of as a sole responsibility. It wasn't expected that parents could share the role (likely because of the emotional nature of divorce). As a result, the courts adhered to "the rule of one"—which is the idea that child custody must go to one parent in divorce while the other parent is a visitor. The parent who often recieved custody was the mother, thanks to something called the tender year's doctrine. Established in the 1800s, this family law principle indicated that mothers were the most capable, compassionate parents.

Under this assumption—absent extreme evidence of the mother’s unfitness—young children never went to the father instead of the mother.

But as our understanding of care and parenthood has evolved, so too have custody agreements. Society has historically devalued fathers as parents—which has impacted how custody decisions are made. Fathers pursuing custody may have to overcome popular engrained ideas that they lack parenting qualities that courts implicitly or explicitly assume the mother has. While this is an additional burden, it isn't insurmountable.

Any parent seeking custody must meet the same criteria—here's what you need to know.

Types of Custody

Over the years, types of custody agreements have evolved alongside parenting responsibilities. Broadly, there are two categories of custody awards, either of which can be held jointly or solely between the parents: physical and legal. "Legal custody" basically means that the parent has all legal right over parenting responsibilities. They can choose what religion the child will follow, for example, or give permission for a surgery. Conversely, "physical custody" looks at parenting time. This might mean that the child resides with that parent, or that the child legally needs to spend two nights a week with that parent, for example.

These arrangements vary between divorced parents. For example, some states split up parenting responsibilities, giving one parent jurisdiction over education and health while the other gets jurisdiction over religion. Or, the court can decide that everything must be a joint decision between both parents. The same goes for parenting time awards. "Physical custody" does not necessarily mean that the child resides with one parent full time and never sees the other.

Sole custody is the historic "rule of one," often awarded today when a parent is deemed unfit to raise their child. Unfitness is a high bar to meet, and the parent seeking sole custody must prove unfitness in order for sole custody to be granted. If the court decides sole custody, it will often grant the other parent visitation rights. This gives the other parent legal right to visit with the child.

A joint custody arrangement is most common. This is when the parents jointly share physical and/or legal custody and come to an agreement on when the child will visit each parent and work together on major decisions.

In most cases, custody decisions are made on a continuum. For instance, both parents may have the child live with them on alternating weeks (joint physical custody), whereas one parent may have decision-making authority regarding the child’s medical care (sole legal custody).

While the standards vary from state to state, most courts follow the “best interests of the child” standard when tasked with custody proceedings. Under this principle, there are several factors that courts consider, among them: the wishes of the child's parents; the wishes of the child; the interaction and interrelationship of the child with their parents; the child's interaction and interrelationship with siblings, and any other individual who may significantly affect the child's best interests; the child's adjustment to their home, school, and community; and the mental and physical health of everyone.

How Fathers Can Build a Custody Case

It is fully possible for fathers to get sole custody of their children. In order to do so, first and foremost they must establish the unfitness of the mother. The court must also feel that the father meets the "best interest standard" of the child. That is to say—is granting the father full custody what is best for the child?

In addition, there are aspects of a custody case where fathers may have an additional burden to prove that mothers do not. These include paternity, the primary caretaker role, and home environment quality.


There are two ways to determine paternity: biologically or legally. Under the Uniform Parentage Act, a man is an "alleged father" if they have not established biological paternity or achieved presumed fatherhood. The law often distinguishes between the legal and biological recognition of paternity: “Where such births result from sexual intercourse between consenting adults, genetic ties almost always themselves determine legal motherhood, but often only help determine legal fatherhood." Legal parentage is required to receive the constitutional rights of a father.

In cases where the father is not married to the mother, but another man is, courts have ruled that fatherhood may be determined by who the mother is married to, rather than biology. If a father is not married to the mother, or if he does not sign an acknowledgment of paternity, he cannot be granted custody or visitation rights.

Primary Caregiver Role

A primary caregiver is a person who consistently is responsible for the housing, health, and safety of another. In custody proceedings, courts assume the primary caretaker is experienced and knowledgeable regarding the child’s educational needs, medical needs, and more. As family dynamics shift from stay-at-home mothers and working fathers, there may be a presumption on who mostly handles the roles of primary caretaker. Fathers must show their engagement in caring for their child academically, medically, and in other critical areas.

In families where the mother does stay home or work less, there is a preconceived notion that children's bond with the stay-at-home parent is stronger than their bond with the working parent. As part of making decisions within the child's best interests, a change in primary caregiver is typically considered as causing at least some distress to the child.

Because of this, courts are hesitant to change a child's primary care provider unless it is in the child's best interest. The non-primary caretaker parent should offer some other evidence counterbalancing this finding, such as the child’s aptitude to adjust to new environments.

The mere fact that a parent balances work and family needs should not be determinative in decisions regarding their aptitude to connect with their children. Therefore, it is necessary to examine the working-parent and child relationship on an individual basis. Doing so would provide that parent with the opportunity to demonstrate the strength of their relationship during a custodial proceeding.

Mothers, whether they work or not, statistically tend to have more responsibility for parenting aspects such as attending parent-teacher conferences, school plays, doctor visits, playing at parks, helping with homework, and other activities. In fact, studies have found that 48% of fathers in the U.S. participated in their children's school activities once a year or less.

A father seeking custody may need to overcome this and demonstrate to the court that they participate in all aspects of parenting, not just financially. Courts appear to want the primary caretaker to be an experienced and knowledgeable parent who knows how the child learns best, their major health needs, etc. Demonstrating involvement in these crucial aspects of care is important.

Quality of the Home Environment

The quality of the home environment is another element that may further burden fathers due to beliefs about their parenting when compared with mothers.

When looking at this element, the courts consider things like intellectual, emotional, and cultural factors. Courts weigh the quality of the home environment for both parents, however, when neither home is harmful in any way, courts will also take into account which home is simply better. Does one home sit in a better school district? Or does it provide more opportunities for the child's growth and development? Sometimes, the determination of "better" is as simple as that.

In addition, there may be incorrect assumptions about the father's capability to meet the child's emotional needs. Thus, a father should demonstrate his understanding of his child's emotional needs. The emotional wellness of a child is an important factor in determining where a child should live.

A Word From Verywell

There is no denying that society does not value fathers enough, but the fact is that fathers can be just as important as any other parent in a child's development. Studies even show that fatherless children live an average of four years less. In addition, children who feel close to their father are twice as likely to enroll in college or find stable employment after high school, 75% less likely to have a teen pregnancy, 80% less likely to end up in jail, and half as likely to have multiple depression symptoms.

When it comes to fighting for your child, these studies, as well as many others, can speak to the importance of the fight. Though it may be more difficult for father's to build a custody case, it is not impossible. Consider the key elements of establishing fitness and work with a qualified legal team to establish them for the courts.


Our legal system interacts with fathers in various ways. Articles on Verywell Family should not be interpreted as legal advice. Speak with a qualified attorney in your state about the specific issues to address in your case if you are seeking custody of your child.

14 Sources
Verywell Family uses only high-quality sources, including peer-reviewed studies, to support the facts within our articles. Read our editorial process to learn more about how we fact-check and keep our content accurate, reliable, and trustworthy.
  1. J. Herbie DiFonzo, From the Rule of One to Shared Parenting: Custody Presumptions in Law and Policy, 52 Fam. Ct. Rev. 214

  2. Erin N. Birt & Elizabeth J. Chacko, The Changing Role of the Tender Years Doctrine: Gender Bias, Parenthood, and Illinois Law, 26 DCBA Brief 26, 27 (2013).

  3. Hartenstein JL. Tender years doctrine. In: Shehan CL, ed. Encyclopedia of Family Studies. John Wiley & Sons, Inc.; 2016:1-4.

  4. Nolo. The Different Types of Child Custody.

  5. Raub JM, Carson NJ, Cook BL, Wyshak G, Hauser BB. Predictors of custody and visitation decisions by a family court clinicJ Am Acad Psychiatry Law. 2013;41(2):206-18.

  6. Jeffrey A. Parness, New Federal Paternity Laws: Securing More Fathers at Birth for the Children of Unwed Mothers, 2006;  59, 97.

  7. Legal Information Institute. Visitation Rights.

  8. Best Interest of the Child.

  9. Allen Spivock, Alexander S. Wiener. Disputed Paternity Cases. 10 Am. Jur. Trials. 1965;653

  10. Michael H. v. Gerald D., 109 S. Ct. 2333, 2335, 105 L. Ed. 2d 91 (1989).

  11. People v. Frazier 128 C.A.4th 807, 822, 27 C.R.3d 336 (2005).

  12. Determining factors: Totality of circumstances - Stability, 3 New York Matrimonial Law and Practice § 20:21

  13. Nord, C., 1997. Fathers’ Involvement in Their Children’s Schools.

  14. Children's Bureau. A Father's Impact on Child Development.

By Zshornelle Chelsea Daniel
Zshornelle Chelsea Daniel graduated from Stony Brook University with a Bachelor in Psychology. She is currently a law student at Brooklyn Law School, where she is the Vice President of the Women of Color Alliance.