Dad with two kids in family room

How Does a Judge Determine Custody?

During separation proceedings, if a former couple has children, more than likely there will be some form of custody agreement. This could mean sole custody, joint custody, or another agreement formalized by the court. In nearly 70% of cases though, according to Huff Post, women are usually the ones granted custody. Why is that?

Moms Have Custody At the Birth Of a Child

Tennessee laws state that if a mother and father are unmarried, a mother automatically receives full custody at birth while the father has to prove paternity. Once paternity is established, though, a father has the same amount of legal paternal rights as a mother.

Stereotyped Roles

Even in the modern era, there is still a stereotype that mothers care for their children more than fathers. This makes sense if mothers exclusively breastfeed their children through the first year. However, during that same time period, a father can take on responsibilities such as changing diapers and playing with the child which is just as important to a child’s development. As children become more independent, each parent has the opportunity to expand into a more equal playing field in regards to the roles they perform. Either parent could drive children to their school or practice; either parent could help children with their homework.

How is Custody Determined?

When considering who to give primary custody to, a judge will look at factors that are for the best interest of the children including:

  • The parent’s capability to provide food, shelter, and other necessities for the children;

  • The roles each parent took in being the primary caregiver so far;

  • If one parent is able to provide a more stable environment for the children over the other parent;

  • The mental and physical health of each parent; and,

  • Each parent’s current and future performance in their parenting responsibilities.

The more a father can connect with his children at a younger age the better, especially if a separation is on the horizon. In most cases, a father will need to prove more than the mother how he has supported his children’s physical and emotional needs if the father is looking for primary custody.

A father will also want a lawyer on his side who is familiar with the process of establishing primary custody and that’s where the team at Orshan, Spann & Fernandez-Mesa can help. Contact us today for a complimentary consultation.