I have many clients who are fathers in bad situations. Some fathers find themselves in bad marriages, but fear filing for divorce because they believe that the courts will always favor the mother and they will simply lose their children. Other fathers, already divorced, feel shut out of the parenting process, but fear filing for custody because they believe it is simply a lost cause. Increasingly, however, the Courts are looking to facts and not simply to gender. The latest case to highlight this encouraging trend is Neer v Neer, Montgomery County Appellate Case No. 25876.
In Neer, the mother appealed the trial court’s decision granting the father’s Motion to Terminate a Shared Parenting Plan and Motion to Modify Child Support. Father and mother had been in a shared parenting plan since their divorce. The father found the plan unworkable because of the mother’s unilateral actions. For example, mother decided to put their teenage son on Prozac without consulting father. She later took him off Prozac without consulting father and the child became sick with the side effects of withdrawal. She failed to tell father of any of their son’s medical appointments. The mother also changed their eight-year-old son’s day care without consulting father. This caused confusion to the child and disruption to the father. The mother refused to cooperate with the new daycare provider when father was forced to work late.
The Court granted the father’s request for custody, terminated his child support obligation and ordered the mother to pay child support to the father. The Court also imputed a higher income to the mother than the mother’s reported income from a part-time job, increasing mother’s monthly child support obligation to the father.
The Neer court stated:
Significantly, the record established that the parties’ relationship had deteriorated since the divorce to such a degree that the minor children had begun to suffer as a result of Paulette and James’ inability to communicate effectively. Paulette routinely made unilateral decisions without James’ input or knowledge that negatively affected the children in various ways. The evidence further established James is able to provide a more stable living environment.
A mother’s routine lack of coöperation? A father who can provide a more stable living environment? The court clearly looked at the parties’ actions without regard to their gender and determined that the mother caused the problems in the shared parenting agreement. The trial court found that the mother had excluded the father in the parenting and it had adverse effects on the minor children. The language used by the Court shows that it considered each person’s abilities as a parent, period. The Court went to the trouble of considering facts instead of automatically assuming the mother just had to be the better parent.
The second area the court ruled on that was helpful for fathers rights was the ruling on the mother’s Child Support Order. The Court based the amount of child support paid by the mother to the father upon income she should have been earning, not the much lower amount she actually earned. Despite the fact that the father earned far more than the mother, the court increased the mother’s child support obligation beyond what she actually earned.
What does this mean for fathers? It means that you have rights and the courts will not ignore you if you have facts to back-up your custody case. Fathers should collect evidence (emails, texts, Facebook posts, dates of events) that demonstrates that the mother’s actions are destructive to the father-child relationship. In short, the Court recognized that the father-child relationship has inherent value and it protected this valuable relationship at the expense of the mother whose actions undermined that very relationship.
The father in Neer had several factors to his advantage going in to the case. For starters, he already had shared parenting and was designated residential parent for school purposes. He also had the good luck to be the father of older boys. Finally, the mother did herself absolutely no favors by messing with a trouble child’s medical care and disrupting the daycare and school schedule for the younger child for her own financial gain.
Would the case have had a different outcome if the children in question had been two-year-old twin girls? Perhaps. The point of Neer is that the Courts are now looking to specific facts and not simply perpetuating the myth that gender controls a person’s parenting ability. It is always easier for a father to win a child dispute case when the mother is what I call a “Imperial Mother.” The fact that the mother in Neer was willing to appeal the case despite her own actions indicates that she herself was counting on the historical bias in favor of mothers. She’s done a favor to fathers everywhere by elevating the case to the appellate level.
I found the Neer case on my Ohio State Bar Association app where I read advance sheets on family law every morning before work. If you have questions about this case, or concerns about your legal rights as a parent, I’d be glad to speak with you.