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Stay-at-Home Dads – Greater or Lesser Chance at Child Custody?

On Behalf of | Jan 21, 2020 | Family Law


Do stay-at-home dads have a good shot at being granted status as the primary residential parent to their children in a Tennessee divorce? In today’s world, traditional family roles are not so common anymore. Gone are the days of dad driving off to work every morning as mom tends to the kids and household chores for the entire day. More and more women are working outside of the home, and in an ever-increasing number of cases, the father actually stays at home and cares for the kids.

And to make matters even more complex, women as primary caregivers have traditionally been awarded not only custody of the children during a divorce, but child support and alimony as well. This was always intended to allow the children to continue to live in the manner in which they’d grown accustomed. But it brings up an interesting question. Do the stay-at-home dads of the 21st century get the same benefits?

Tender Years Doctrine

In the past, courts had a strong tendency to award primary residential custody to mothers – particularly stay-at-home moms. The “Tender Years” doctrine was adhered to in most courts, and it held a strong presumption in favor of children under the age of 13 staying with their mother the majority of the time. And while this doctrine is officially no longer adhered to, some believe that a bias still remains.

And bias may matter, because even though there are guidelines in place that are gender-neutral, judges actually still have a great deal of discretion when making their rulings on who gets the kids. So the question of whether or not many judges still have a bias in favor of the mother still lingers and can be very relevant to a custody case involving a stay-at-home dad. So what is a dad to do?

Set Yourself Up for Success

The good news is that, if you are a stay-at-home dad, the gender-neutral laws of today are in your corner. It’s just up to you to set yourself up for success and make a good showing in court. You can do this by presenting evidence that you have been the primary caregiver, and that it is in your child’s best interest that you remain the primary caregiver. Always keep in mind that the judge wants to do what is best for the child. It’s not about what you want or what your ex-spouse wants – it’s about the children. So if you can prove that you are the better choice, your chances of gaining the status of primary residential parent increases significantly.

Know the Factors

When determining primary residential custody, judges in Tennessee look to a number of factors. They begin their evaluation of both parents presumably without any bias towards the mother or father based on gender, and even if they have a hidden bias, you can overcome that with the facts.

You can take a look at the statutory factors that judges must consider in these cases by looking at Tennessee Code Annotated, Section 36-6-106. These factors take the following basic concepts into consideration:

  • Which parent provides a more stable environment for the child?
  • Which parent has been the primary caregiver to the child thus far?
  • The child’s ability to adjust to a new home and school, etc.
  • If the child wants to give an opinion as to who they prefer to live with, the court will hear their preference. However, the preferences of a child that is 12 or older holds significantly more weight.
  • Which parent has a stronger emotional tie to the child?
  • Which parent works to facilitate a good parent-child relationship with the co-parent as well as visitation with the co-parent?
  • Any instances of domestic violence, child abuse, child neglect, or substance abuse on the part of the parents.
  • Which parent follows court orders without being forced?
  • Which parent has a better living situation?
  • The mental and physical health of each parent.

There are other factors, but generally the court is looking to see who is the most emotionally healthy parent and who will put the child’s best interests above (or at least equal to) their own. Judges do not like to see a parent who “plays dirty” and tries to thwart a child’s healthy development for their own purposes, so keep the angry text messages to your ex, or venting to your child about your ex, to an absolute minimum. Never contravene a court order, and don’t try to stop your co-parent from seeing your child unless there are safety concerns that you can prove in court.

What Else Can I Do to Retain Custody of My Kids?

The factors mentioned above are a very good place to start if you are a stay-at-home dad who wants to remain the primary caregiver to your child or children. But here are some ideas about what you can do procedurally to increase your chances of keeping your kids.

  • Get the first word with the judge by filing your petition first. This means that the judge will read and consider your words first and may set the tone for the rest of the proceeding.
  • Request a temporary child custody order. This is an order that resolves the issue of who the children will stay with during the pendency of the divorce. The judge may or may not opt to rule on this, but if it is important to you, file it. If granted, it may save you considerable pain from arguing with your soon-to-be ex over where the kids should be until the divorce is final, and it gives you a bit of an advantage in that the status quo for the kids would be to keep you as primary residential parent when it comes time to put in the final order for custody.
  • Never bad mouth your ex-spouse to your children – ever.
  • Be ready to document that you are the primary caregiver, and get witnesses on board who can and will testify to the quality of care that you provide.
  • Never deny parenting time between your kids and your spouse. Judges frown on this.
  • Be prepared to negotiate. Judges prefer for parents to reach a reasonable agreement on custody, and with the use of your attorney, people can often reach an amicable settlement on their own.

Get Help for Your Child Custody Case

Speak with an experienced attorney at Batson Nolan PLC who knows how to help you get the best results possible for your specific circumstances. To speak with an experienced attorney at our offices in Clarksville or Springfield in confidence, please call us or inquire online today.