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Parents Make Custody Choices, Custody is Decided Long Before Divorce
by Honorable Anne Kass. Ann Kass is a District Judge in the Second Judicial District State of New Mexico

Recently I received a copy of an article from an unhappy, divorced father.

The article quoted statistics that in America fewer than 3 percent of all children live with their fathers only, while 21.4 percent live with their mothers only.

The article stated, "On the face of it, these numbers prove that courts disenfranchise fathers." The article went on to describe the agony of fathers who lose their children in divorce.

There can be no doubt that fathers who lose children in divorce suffer excruciating pain, as do children who lose their fathers.

However, for the most part, it is not divorce courts that decide which parent gets custody. It is the parents themselves who make that decision. Courts only recognize and affirm the decisions parents have made.

Parents decide who will get custody, unknowingly and unintentionally, outside the divorce process. They make the custody decision a little piece at a time.

Parents start to decide who will get custody when they decide which parent will get up for the 2 a.m. feeding, and when they decide who will make and keep appointments with the pediatrician, and when they decide who will stay home from work when the child is ill. They continue to decide when they pick the parent who prepares the child's meals, shops for the school clothes and chauffeurs the child to and from events.

If the parents decide to assign these tasks primarily to one parent, then the parents themselves will have decided which of them the children look to for security and to meet their basic needs.

When divorce occurs, the courts are faced with a "done deal." There will be a clear "primary parent" from the child's point of view, and unless that parent has serious flaws, the Court will not disrupt that relationship.

This is not to suggest that upon divorce fathers are to be eliminated from a child's life. Far from it. However, if a father has not been a child's primary parent during marriage, he ought not be surprised when the court declines to elevate him to custodial parent when divorce takes place.

For fathers to have a true equal chance at primary custody in divorce cases, they must begin to plan for custody long before divorce papers are filed. They need to begin to plan for custody the day their child is born.

Divorced fathers often claim divorce courts treat them unfairly in custody disputes. Regrettably, sometimes unfair treatment occurs. But more often than not, courts are simply recognizing the parents' decisions.

Courts seldom establish societal norms; they merely reflect the.


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