The new era of embracing fatherhood and encouraging fathers to participate more in their child’s lives, from diaper changes to teenage curfew violations, has created a new niche of stay at home dads. Stay at home dads are the gender counterpart to stay at home moms – they chose to leave the workforce in order to be the primary caregiver for their children. This is usually more common when the wife is the top earning spouse and her income is able to provide for the family without assistance.
With change, comes new questions and concerns. If a divorce should happen (or is happening), what are the rights of the say at home dad? It is common for a stay at home mom to share legal custody and have residential custody even though she was not the individual providing the financial support and may be receiving continued support from her ex-spouse.
Will the same go for the stay at home dad? Will he get the house and the children along with it, and will his ex-wife be the one to cut a check for support?
He should – that is essentially how it would go if he were of the opposite gender. Our attorneys firmly believe that a father has a right to his children and should be allowed to continue his role as primary caregiver if he was a stay at home dad during the marriage.
Florida statutes regarding child custody, visitation, child support, and spousal support are all written in a gender neutral fashion. Child custody is supposed to be granted based on what is best for the child and is supposed to be focused on shared parental responsibility, yet there are those who still follow the “Tender Years” doctrine in which the belief is held that children under the age of 13 should be with their mother. In order to ensure that your rights as a father and as the primary caregiver are not circumvented, you will need an experience attorney by your side.
Spousal support is not a guaranteed right in the State of Florida but may still be awarded to the stay at home dad. Spousal support is calculated based on several factors including
- What is your employment eligibility? Were you working prior to your marriage or the birth of your children? Did you forfeit your career to be caregiver? Do you have any skills that will allow you to re-enter the workforce?
- The length of your marriage and the length of time spent being caregiver. Was your status of caregiver new or have you dedicated most of your life rearing your children?
- The disparity of income between your ex-wife and yourself.
- The property settlement and who will have the children the majority of the time.
Child support on the other hand is awarded based on state guidelines that calculates a percentage of financial responsibility based on the income of both parents and the length of time the child spends with each parent. Typically the parent who will be caring for the children the majority of the time will be awarded child support and the larger the difference in income, the large the support payment may be.
If you are a stay at home dad and facing the prospect of divorce, here are a few tips to help you through the process:
- If possible, file for divorce first. This gives you a slight advantage since you will get to put in the first word to the judge and set the overall tone for the divorce proceedings.
- Document what the current custodial environment is – gather proof of what you do on a daily basis as the children’s primary caregiver. Also gather proof of your relationship with your children. For example, you could make a home video recording a day in the life of a stay at home dad or take pictures of activities or trips you do with your children. Locate and take additional pictures with your children taking part in activities, even just the day to day stuff.
- Gather witnesses that can attest to the effort you put in as a caregiver. You want them to say more than “he’s a good dad”; you want them to be able to attest to the interactions between you and your children and the child’s reliance on you as a parent.
- DO NOT DENY visitation between your children and their mother. Judges highly frown upon keeping children away from one of their parents, especially if there is no due cause (e.g. abuse). You may be the primary care giver but your children do need to maintain a healthy relationship with their mother.
- Remember that you will need to negotiate and not everything will go exactly your way. Speak with your attorney about what you believe is best for your family and find ways to work with your spouse to achieve that. Florida focuses on having parents work together as much and as amicably as possible to raise their children after a divorce.
- If you have nothing nice to say, then say nothing at all. Speaking ill of your spouse in front of your children can cause psychological scarring and even resentment in your children. Judges also frown on this; especially if you openly attack your spouse in their courtroom.