Can Absent Fathers Get Custody? [it depends]

A legally absent father who is not involved in their child/ren’s life may return and petition for visitation or child custody. While the ensuing legal battle may be stressful and strenuous for the custodial parent and the child/ren, the absent parent may have genuine reasons to petition for visitation or custody. US family law recognizes parental rights regardless of parental involvement in the life of the child/ren.

Biological parents have both constitutional and fundamental rights to parent and contribute in determining their child/ren’s destiny.  Even absent parents have parental responsibilities and the right to influence the upbringing of their children.

Parental responsibility refers to the rights, powers, authority, duties, and responsibilities a parent has over their child/ren. The concept of parental responsibilities centers more around the parents’ responsibility towards the child than their rights over the child/ren.

Absent father hugging his daughter before leaving house with luggage and mother stands off in distance watching

Who Is a Legally Absent Parent?

A parent may be absent from the child/ren’s life under excusable circumstances under the law. Such circumstances include military service, relocation to a distant place, or illness, among others. The US legal framework around parental responsibility empowers parents to have a say in the child/ren’s health, education, wellbeing, and other issues.

Another category of absent parents is those who are viewed to have completely neglected or abandoned their child/ren for some time. This means that for some time, the child/ren is under the sole care of the custodial parent.

Before being enjoined into the child/ren’s life, the absent parent needs to give convincing reasons for the absentia. The court may determine on the level of involvement if the reasons given are in the child/ren’s best interest.

Even after regaining access to the child/ren, the absent parent’s privileges may be caped to supervised custody or visitation until the court determines when suitable for full involvement. 

Apart from the right to physical custody, absent parents also have legal rights, including:

  • Decisions on the level and nature of medication the child/ren needs to receive.
  • Where they school
  • Where they stay
  • The child/ren’s religious and spiritual upbringing

Determining Child Custody

While the law requires both parents to create conditions fit for the child/ren’s wellbeing, no parent is perfect, and a few little limitations cannot deny the parent the right to access their child/ren. However, being an unfit parent may force the court to limit access and interaction between the child/ren and parent.

An unfit parent is ones who, through their own conduct, fail to offer the proper care, guidance, and support to the child/ren. Furthermore, an unfit parent is one that neglects the child/ren and sexually, physically, and emotionally abuses them.

Allowing access to the child or limiting the same is determined by a number of factors discussed below;

1. Emotional Ties Between Child and Parents

The child/ren’s emotional ties and the relationship between each parent is a major factor in determining the direction of child custody cases. The emotional ties and the depth of interaction between the child and either of the parents are determined by external factors like knowledge of the child/ren’s needs, likes, and interests.

If the child has developed strong emotional ties with the custody parent, the absent or non-custodial parent may be granted visitation rights and not custody.

2. The Wishes of the Parents 

The court factors in the wishes of both parents before determining the custody and visitation rights.  This can become a major contentious issue, especially if both parents are seeking full custody or are disagreeing on certain terms.

In the event that the parents can’t agree on certain issues related to the child/ren, the court has the power to make the final determination after considering all factors.  However, if the parents are able to reach an agreement before the court’s determination, then in many cases, the court will uphold the agreement if it serves the child/ren’s best interests.

3. The Wishes of the Child/ren

Depending on the age and ability to make sound and rational decisions, the court may consider the child/ren’s wishes. In many instances, the court ruling is based on what the parents want, the recommendations from the social worker or other appointed professional, and the court’s own assessment of all factors. 

Many times the child/ren’s personal wishes are not considered as much due to their inability to correctly discern between right and wrong. For instance, a child may seek custody with a certain parent because he/she is more lenient and can overlook indiscipline.

4. Mental & Physical Health of Children & Parent

While being physically disabled does not translate to inability to care for and raise your child, a parent’s mental and physical health are factors that the court bases its ruling on. This may be an issue, especially if the disability presents a challenge in providing for and caring for the child/ren. 

Parents who suffer mental disorders and emotional distress may also be granted limited access to the child/ren. This is for security concerns or inability to offer proper care.

5. The parent’s willingness to work with other

Under normal conditions, the law grants both parents an equal amount of time with their child/ren. The court will first find out each parent’s willingness to work with the other parent. It is therefore good if the parents can reach an amicable solution beforehand.

6. The child/ren’s dominant caregiver

The court will also consider the parent who has done more in caring for and raising the child. This may be in the form of financial provision or anything else that entails parenting. The parent’s occupation and time commitment is a major factor determining child/ren custody. For parents who have tight work commitments, looking after the child/ren may be a challenge, hence custodial privileges may be limited.

Types of Custody and Visitation for Absent Fathers

In the event of a divorce or separation of a marriage that has child/ren in it, the parents assume either custodial or non-custodial/visitation roles depending on who physically stays with the child/ren. 

Child custody

There are two types of child custody – legal custody and physical custody.

  • Legal custody – itrefers to the parent’s authority to make major decisions to determine the child/ren’s destiny. These can be decisions regarding the child/ren’s education, healthy, and religious upbringing. There is sole legal custody where all the legal authority is bestowed on one parent and joint legal custody where both parents can equally make major decisions on behalf of the child/ren. 
  • Physical Custody – it is also called residential custody and refers to where the child/ren spends much of their time. There are three forms of physical custody – sole physical custody, joint physical custody, and bird’s nest custody. Sole physical custody refers to the case where the child/ren resides in a single location, and the non-custodial parent normally granted visitation rights. Joint physical is also known by multiple other names like “dual residence,” “shared parenting,” or “shared custody.” In a joint custody arrangement, the parents share the amount of time they physically stay with the child/ren. Time may be shared equally or as agreed. For bird nest custody, it is the child/ren that only stays in one location, and the parents visit alternatingly.

Visitation

Visitation is an arrangement where the non-custodial parent is given visitation rights to see the child/ren regularly. There are three main categories of visitation;

  • Unsupervised visitation; in this arrangement, the parents have unlimited access to the child/ren with a few pre-agreed limitations. 
  • Supervised visitation; in this case, the non-custodial parent is allowed to visit and interact with the child/ren in the company of another responsible adult.
  • Virtual visitation; in this form of visitation, the non-custodial parent is only allowed to visit the child/ren through video-conferencing technology.  It is common for parents who live far apart.

Conclusion

Absent parents have legal rights to their child/ren. However, access to the child/ren may be limited due to several factors and as determined by the court. Divorce and child support can be complex and strenuous to handle. This is why you need a qualified family attorney to help you navigate the process.