A lot of people are under the impression that some states are “mother states” or states that prefer mothers over fathers in custody matters. This point of view infers that there are also “father states” where fathers are favored. These terms really annoy me because there are way too many factors that go into a custody determination, for either Moms or Dads to hang their hat on how the case will turn out.
Constitutional Safeguard vs. Having Father or Mother States
So way before all of the female liberation movement and such, women staying home to take care of the family was a “thing”. Not that it is not now, but before the 1970s, it was much more widespread. As a result, if there was a custody dispute, women were much more likely to get custody because of their role as the primary caretaker. At the same time, there were no challenges to the Constitutionality of laws that were gender-biased or courts that imposed gender bias on families.
However, today most father and mother states have custody laws that do not explicitly favor one over the other. If they did, they would be challenged on the basis of sexual discrimination. Laws that explicitly discriminate against any gender are a violation of the Fourteenth Amendment of the US Constitution. This, however, does not mean that some states’ laws are not discriminatory, it just means that they are indirect with it. So what they typically do is to lay out the criteria or pretexts that are “easier” to satisfy for one gender over the other. For example, if one of the state’s primary best interest factors lists the availability of one parent to stay home and care for the child, this can certainly be viewed as discriminatory against fathers.
The Neutrality of the “Best Interests of the Child” Standard
Every father and mother states has its own set of factors that makes up what it considers the “best interests of the child”. The best interests of the child’s overall objective are to take a neutral position with respect to which parent should obtain custody. It looks to which parent would provide for the child’s mental, intellectual, physical, and emotional well-being. And although some father and mother states’ have factors that are partial to either parent, the underlying basis focuses on what’s best for the child.
States that do not have specific factors leave room for courts to interpret them the way they see fit. This means that they have more latitude in how they consider which facts are more pertinent to meet the objective of the best interests of the child. In these particular instances, they are able to favor one parent over the other. So from the litigant’s perspective, it can appear to be a father or mother state.
This can be a very dangerous proposition, though, because either parent cannot focus on being the most “fit” parent because of their assumption. The belief that you have the upper hand may actually cause you to be “lose” custody.
Joint Custody as the Presumption
Some states have a presumption of joint custody being in the child’s best interests. This negates the whole idea of mothers or fathers getting a favor, particularly in such father or mother states. The presumption of joint custody being the best route for the children puts the burden on either parent to make a case otherwise. So, if the mother wants sole custody, while the father is fine with joint custody, the mother has the burden to overcome the presumption. She must do this by showing that joint custody is not in alignment with the child’s well-being. She must prove that sole custody is better to meet the child’s emotional, intellectual and physical needs more than joint custody would.
Joint custody neutralizes the idea that either parent has an advantage over the other, and that’s exactly the legislature’s intention.
Child Custody Crux
The best way to prepare for a custody case is to do all the necessary research into your jurisdiction’s way of ruling. However, this does not mean to presume anything will go in your favor based on facts that have nothing to do with the best interests standard. Be prepared for the unexpected, particularly where someone tells you that you’re in a father or mother state.
Especially, the courts will have the home of each parent (or party seeking custody) inspected by the appropriate agency. Usually, the office of Child Protective Service (CPS) will be responsible for conducting the home inspection and reporting back to the court on it. The purpose of these inspections in custody cases is to ensure that the home environment is safe and suitable for the child(ren) to spend any considerable amount of time there.
What is a Home Inspection?
Depending on your particular jurisdiction, the term used may be “home study”, “home inspection”, “social study”, home evaluation” and so on. The overall objective is the same no matter the jurisdiction or the term used. The objective is to see the home environment and the child with each parent in that environment to see if the custody best interest’s standard factors are being met. Home inspections are different from custody evaluations. Custody evaluations are typically conducted by a mental health expert/professional. Home inspections, on the other hand, are usually done by social workers, child protection professionals, and the like. Some custody evaluations include a home inspection component so the mental health professional may in fact have the interviews done in the home to cover both, however.
How You Can Use the Inspection to Your Advantage
Although a home visit by Child Protective Services (“CPS”) is meant to be objective, as a parent, you have the chance to use them to your advantage. You could (and should) use the opportunity to present your circumstances in the best possible way to help your case. Be careful of course, as you do not want to be too obvious that you are trying to unduly influence the worker. Be cordial and welcoming, for example, but do not overdo it.
Show the worker your child(ren)’s favorite space, activity, or item. Schedule the appointment at a time when you and your child(ren) are engaged in an activity that you both enjoy. Be sure that the space is clean; that you have adequate food; that safety measures are in place and that no one who does not live in the home is not present at the time.
Show the worker how you encourage learning; how you discipline; how you nurture their development; how you support them emotionally and how you foster a relationship with the other parent. You can also ask the worker questions. You can offer to provide evidence of your being “fit” and/or of the other parent being “unfit”. However, the way you present anything must not come across as negative toward the other parent so be mindful.
Use this opportunity to give the worker what he/she needs in the event they are called a witness in your custody case. But again, be careful because it can work both ways. Focus on the custody best interests of your child(ren) no matter what. If you do not know what that is, ask before the worker shows up to your home.
The Weight Given to Reports
The court defers to home inspection reports significantly in custody matters. The court will rarely find that these reports (the worker’s account of what he/she saw) lack credibility. If there are specific facts the court wants the worker to focus on, they might ask them to do a supplemental or follow-up visit. In addition, either party can request a follow-up visit if they believe that something important was left out or overlooked. The guardian ad litem (or child’s attorney, advocate) can also point out omissions in the report and request another visit.
If either party objects to what is in the report, they the opportunity will more than likely must “impeach” the worker that conducted the inspection. If the objection has to do with something that was said or observed by someone other than the worker, then the party must impeach that individual. Challenging the truth of what someone else said to the worker may be considered “hearsay” and subject to being precluded under that hearsay evidence rules.
The worker that does the report is human too, they make mistakes. Although they are given considerable deference, you must voice your concern with their method, their facts, etc. if you have any.
Home studies or inspections, or whatever they are referred to in your jurisdiction, are almost inevitable in child custody cases. No need to dread them, to avoid them, or try to manipulate them in any way. You can use them to your advantage as long as you are prepared and informed on how to do that. Familiarize yourself with the process in your jurisdiction.