Most people would like to believe that custody laws in Illinois are gender neutral. While earlier case law favored mothers of young children under “the tender years doctrine”, in an effort to be more gender neutral, the custody laws were rewritten in the 1970’s and 1980’s so that they now clearly indicate that it is the children’s “best interest” that is the overriding consideration for custody awards, without regard to gender. In reality, however, it seems that most judges still award primary residential custody to the spouse who is or was in the recent past the primary caregiver, i.e. the-stay-at-home-parent and, despite many more working mothers now, this more often is the mom than the dad. Much of this thinking appears to be based on the idea that if it is not broken, why fix it?
What about situations when a dad truly does or has stayed at home with the children? When a dad has been present, available and a competent parent. “All things being equal”, Dad should be awarded primary residential custody. Is there still a lingering bias that the mother would do a better job parenting? While the answer may still be yes, that is much less so now than it was 20 or 30 years ago.
There is also often a strong cultural pressure for the mother to fight to be primary residential parent even if she either has not been in the home during much of the children’s lives, or perhaps because she suffers from a serious psychological impairment, either with respect to her mental health or substance abuse. Regardless of the reason, it is usually extremely difficult for a mother to have to explain to her friends and relatives why her husband has been awarded primary residential custody of the children.
Some custody fights are waged punitively. Examples may include when one spouse knows (but would never admit) that the children would do better with the other parent; when one spouse tries to gain custody to avoid paying support to the other spouse; or when one spouse tries to prevent the other parent from getting custody for fear of not receiving child support from the other spouse. These cases become a fight to the finish. No one really wins and both the parents and the children suffer. Egos and identities are strongly involved and push more rational and reasonable thinking to the sideline in favor of an expensive and often damaging custody trial.
What about those small percentages of cases where one spouse suffers from severe substance abuse or mental health problems and the “healthy” spouse works outside of the home and needs to continue to do so. The proposition then becomes that the children are better off with a nanny or extended aftercare rather than with the impaired stay-at-home spouse. These are hard cases. However, good psychological testing and assessments often will help the judge see these issues more clearly so hard decisions can be made, taking into consideration what really is best for the children. Even when it is obvious that one spouse is severely impaired and the children’s best interests are better served with the other parent, there will still be a small number of cases where people need and must have their day in court.
On a practical level, what should a stay-at-home dad do to enhance his chances to be awarded primary residential custody? He should know and be personally involved in all aspects of the children’s lives, i.e. school, doctors, friends, and extracurricular activities. He should know the children’s schedules, and attend as many doctor’s appointments, parent-teacher conferences and sports activities as possible. Equally as important, however, is that he should not shut out or attempt to minimize the other parent’s participation in any of these activities or their children’s lives. Doing so is both bad for the child and bad for the case. Even when one parent does a better job parenting, courts can and will award the other parent custody if the facts show an inability or unwillingness of a parent to support the relationship between the other parent and the children. This happens more often than you may think.
Is there gender equality in custody litigation? While custody rules are indeed gender neutral in their application, a stay-at-home father sometimes needs to be more than just a “little better” to prevail.