As if getting a divorce with children is not hard enough, few issues are more vexing than when a father claims, after years of non-involvement, he is entitled to equal parenting time when the couple breaks up. This is known in divorce circles as the “Daddy-Come-Lately” scenario.
How does getting a divorce with children and custody work if your husband has been absent all along?
There is a strong presumption in the law that both parents have equal rights to their children. In the context of divorce, where the parents have separated and the children are living with one of them, there is a corollary presumption that the other parent has the right to visit with the children 50% of the time. This presumption causes a problem when a father who has previously had little involvement with the children asserts that he is entitled to equal time even though he has previously not been an involved parent.
Husbands have a variety of motives to assert they are entitled to equal access with their children during or after a divorce, including a desire to “punish” their spouses, achieve a strategic advantage and evade child support.
Although a “daddy-come-lately”’s claim to spend equal time with children may strike the mother as unfair and even harmful to the children, the law is on the father’s side because of the presumption of equal parenting rights. This presumption can be overcome only if it can be proven that if the husband exercises equal access time the children will suffer. While this is possible, it is not easy and calls for homework on the part of the mother and skillful advocacy by her lawyer.
In order to overcome the presumption that the father is entitled to equal access time, you will need to have admissible evidence showing it will not be in the childrens’ “best interests.” Examples of such evidence would be proof that the father has used excessive corporal punishment, neglected or abused the children, or inflicted domestic violence on the children, the mother, or both. Unfortunately, in many cases, these factors are either absent or not provable.
Also, if parents have lived together before the divorce has started, it will be very difficult to overcome the presumption of parental equality, regardless of how uninvolved the father has been.
A hypothetical case
Suppose a husband and wife have been separated for one year during which the mother has had physical custody of two young children. The parents have worked out an informal access schedule under which the father has alternate weekends and a mid-week visit. Assume this would result in father having 25% access time and the mother 75% access time. However, because of his heavy travel schedule, the father has had to miss a lot of time with the children. The mother files for divorce and the father immediately demands equal time, claiming that even though he has to travel extensively, the mother has given him make-up time so that he has not actually missed any time with the children.
The mother is outraged because, contrary to the father’s story, he has in fact missed a lot of access time. Unless the mother can prove this, a court will most likely grant the father’s request for equal time.
Defending against the daddy-come-lately
If you getting a divorce with children and you are anticipating a custody battle with a daddy-come-lately, you can help your case by starting to gather evidence that may defeat a claim for equal access. In the case of the traveling father, you should keep a log of his itineraries which your attorney can use to cross-examine your husband during a custody trial. You should also keep bank records, credit card statements or other proof of your husband’s travels. These may show that your husband was not home enough to have exercised significant time with the children.
Always gain an understanding of what divorce might look like for you before doing anything radical. Consult for free with SAS for Women to gain critical insights, an overview of your legal options, and vetted resources, or consult an experienced matrimonial lawyer. Even if in your particular case the law is not on your side, the right lawyer may be able to level the playing field.
Daniel H. Stock, PLLC, with offices located in New York City and Westchester, brings more than 25 years of legal experience to all issues associated with uncontested, collaborative, contested or high net worth divorce. He seeks to reach amicable agreements on matters such as child custody and visitation, child support and alimony, and property division. He favors the kind of outcome that benefits you and your children as you transition to a post-divorce future. However, when discussions are not productive, consensus is not possible and litigation is necessary, he is fully prepared to aggressively protect your rights in court.