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Father’s Rights to Custody and Parenting

Father’s rights and men’s rights are terms for a movement where men are pushing for greater rights in cases involving children and paternity. These issues arise in cases such as divorce, allocation of parental responsibilities, as well as paternity actions. Father’s rights groups arose because for many years Court’s followed what is called the “tender year’s doctrine.” Under this doctrine, courts presumed that the mother should care for the child during the child’s “tender years.”

For example, long ago, our Colorado court’s wrote about the “tender years doctrine” or “tender years rule”:

  • “It is generally held that courts will not deprive the mother of the custody of her children of tender years, unless it is clearly shown that she is so unfit a person as to endanger the welfare of the minors.” Hayes v. Hayes, 303 P.2d 238, 239 (Colo. 1956).
  • “It is the universal opinion that a mother’s love, care and affection for a child of tender years are the most unselfish of all factors in human relations, and that the child is not to be deprived thereof unless for a very good reason, founded on lack of moral fitness and proper home surroundings.” Averch v. Averch, 90 P.2d 962, 964 (Colo. 1939).

These cases justified the allocation of parental responsibilities to mothers and to the exclusion of fathers. However, the world has come a long way and now Colorado recognizes the rights of fathers and no such presumption in favor of mothers exists. Now Colorado simply follows the “best interests of the child” standard and awards parenting time to the parent that it determines is best. 

In the eyes of a Colorado court, mothers and fathers are equal (or are supposed to be). This, of course, does not necessarily ensure that all judges subscribe to this view and obtaining rights as a father may be difficult if the decision makers are swayed by societal, historical, or other views.

 

Parental Responsibilities and The Best Interest of The Child

As explained in our more-general resource on child custody, Colorado courts look at the “best interests of the child” to decide which parent ought to have more parenting time. Although marriage can be a factor in relation to paternity issues, it is not really a factor in determining parenting time. Although father’s are supposed to be equal in this determination, many factors may affect whether they truly are.

For example, the Child & Family Investigator (“CFI”) or Parental Responsabilities Evaluator (“PRE”) in your case may tend to favor mothers or possibly fathers. Knowing which experts favor which parent is critical to ensuring that a father has, at a minimum, an unbiased view of the case. Other things that the judge may look at include:

  • Who spent the most time with the child?
  • Who is most-capable for caring for the child?
  • Who is the child attached to?
  • Where do the parties live and how is a workable parenting-time schedule going to work?
  • What are the child’s wishes if the child is old enough to express any?
  • Which parent puts the needs of the child above their own?

 

What Fathers Need to Know About “Father’s Rights”

There are no legal doctrines or cases that instruct courts to give any favor to mothers. In fact, the law is the opposite and both genders are to be treated equally. Because of this, father’s rights and mother’s rights are largely similar and the arguments essentially the same. What you need is an attorney that understands the implied or express biases of each of the experts (such as CFIs and PREs) as well as the biases of any decision maker. Knowing these things can help ensure that you get a fair shot at getting the parenting time you deserve as a parent.

Griffiths Law often sees law firms advertise themselves as a “Father’s Right’s Attorney” or something to that effect. In reality, what any father needs is the same as anyone else going through a custody dispute – an outstanding attorney who communicates with them, understands their issues, and solves their problem.

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