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Episode 62 - Can a Father Really Win Custody?

Episode 62 - Can a Father Really Win Custody? Image

11/20/2018 9:10 am

In this show, we discuss this question and provide a little context to the question. We cover a little legal history and explain how the area of child custody has been evolving over the years. We break down how you overcome any perceived biases that may exist in your case. We analyze whether "Can a Father Win Custody" is the best question to ask.


Leh Meriwether:             Welcome everyone, I'm Leh Meriwether it with me is Todd Orston. Todd and I are partners of the law firm of Meriwether and Tharp and you're listening to Meriwether & Tharp radio. Here you will learn about divorce, family law and even tips on how to take your marriage to the next level or save your marriage if it's in the middle of a crisis. Every week, Todd and I share our experiences and knowledge to help people navigate challenging times in their marriage, their life and with their family.

Leh Meriwether:             If you want to learn more about us you can always call or visit us online at

Todd Orston:                   All right, so today we want to address a question we get all the time.

Leh Meriwether:             All the time.

Todd Orston:                   I would almost say on like a weekly basis we are asked this question, and the question is, can a guy really win custody? Before we go into the topic, I want to preface it with a few caveats. First, we do not represent only men and even if you are a woman listening to this, you're going to want to listen because we're going to share important and relevant information that you may and probably would find very helpful.

Todd Orston:                   On a yearly average our practice is pretty much 50-50 when it comes to representation of both men and women. We believe that gives us an advantage when it comes to trying to resolve contested custody cases because again we can see it from both sides. With those caveats in place, I want to lay out a plan of where we're going to go today. Before we answer the question of can a guy really win custody, we want to give some context.

Todd Orston:                   All right, we're going to look at this from different views and from different angles. One, we're going to look at the legal history. Explore the way most legal systems are set up to handle the custody question, look at how personal experiences impact our system and discuss how the actions of a few can impact us all.

Leh Meriwether:             Here's why we're addressing the context before we get to the ultimate question. Without context, it's really easy to start off a case just blaming everyone. You can blame the judge or blame the guardian ad litem that maybe investigating, blame the lawyers that are involved in the case. We've seen cases where the dad will accuse everyone of some sort of conspiracy. In fact, I think there's, somebody made a documentary that basically makes allegation.

Leh Meriwether:             But here's the thing, when you frame your conversations and presentations to the core in the wrong way, in the wrong manner, you're setting yourself up for failure but when you understand that there may be certain biases that may have been created, by our history, the culture maybe certain aspects of our legal system,  t allows you to work to solve a problem rather than attacking a person because typically when you attack a person, especially the one making decision in your case, you can start off the wrong foot.

Todd Orston:                   Well it also makes you lose focus.

Leh Meriwether:             Exactly.

Todd Orston:                   These cases like most cases it's about strategy. What the right approach is going to be, what kind of information do you need to gather? If you start going down that path where you are focusing on blame focusing on the wrong things, you end up losing sight of the overall and good strategy that you really should be pursuing.

Leh Meriwether:             Exactly, and so when you work to solve a problem you also worked overcome what may be a bias in a certain case. That's what part of what we're going to explore. Whether there are biases and what kind of biases that there are that exist out there. Sometimes when you attack a person you can be unwittingly confirming a subconscious bias that may or may not exist.

Leh Meriwether:             Now, this might not make sense at the beginning of the show but we hope by the end of the show, this is all going to make sense because we're going to tie it all together and answer the ultimate question at the end of the show.

Todd Orston:                   And if it doesn't make sense, I blame you.

Leh Meriwether:             You can blame the listener, you’re blaming the listener.

Todd Orston:                   Okay, all right. I'll try not to blame but all right so with that preface, let's go back 30 to 40 years. All right, and let's look at some of the history as it relates to custody and the laws that were in place back then and how things have changed.

Leh Meriwether:             Yes, so going back years ago there was this concept called the Tender Years Doctrine. It was a concept that was adopted by a lot of the courts. I should say the legislature so it was a statute at different states. I'm pretty sure that most states in the United States had this doctrine or followed it.

Leh Meriwether:             The doctrine basically said and every state had it differently but was that those first four to eight years of a child's life or those tender years that require a mom. There was a prejudice against fathers right off the bat in the statute and it said … and it was, there was you know arguably there were some psychology based behind that in those tender years that it is presumed that the best thing is for the child to be with their mother primarily.

Leh Meriwether:             That, if you had a child under the age of eight, I mean your chances as a dad of winning custody were next to none back then. Now, the good thing is, as time went on evidence start to come out to say now, there was two things that actually happened. Evidence started to show, this is flawed. There's those data didn't necessarily support this doctrine or the data they had wasn't valid.

Todd Orston:                   Yes, so at its most basic level, there wasn't enough information or evidence to support the claim that a young child had to be with mom. That a mom was the only parent, between the mother and the father that could provide what that child needed. On its most basic level, it was flawed.

Leh Meriwether:             Yes, and then you had another component and that's the legal component that the law had a preference of one gender over another, which is a violation of constitutional law arguably. I don't know if it was ever a challenged, but I do know that that was one of the issues, which also caused a lot of the changed in every state.

Leh Meriwether:             Over the course of the late ‘80's into the early ‘90's, I’m not going to go to the exact history because we don't want to spend a whole time on that. But essentially over the course of the ‘80's and ‘90's, slowly the state legislatures removed that old Tender Years Doctrine and replaced it with what's called the best interest of the child standard.

Todd Orston:                   Yes, and I think it's important to note that it also was flawed in the sense that it ignored facts that could impact a child. In other words, before it was changed, when the tender years' doctrine was in full force and effect. Well, what if a mom had issues that basically would make a judge now say, “Well, you are not providing the level of stability that that child needs.” Back then some of those things might be ignored simply because you're the mom.

Todd Orston:                   All right, and so yes, then it changed to best interest of the child standard, which is a standard that has now been uniformly adopted throughout the United States.

Leh Meriwether:             Yes, and its gender neutral that doesn't ... there is no preference in the statute that one parent is a better parent than the other. Instead, the courts are to look at certain factors when determining who should be the primary physical custodian of the child or should it be joint physical custody.

Todd Orston:                   Right, and the focus is on the child right as opposed to in the past, there was more of an assumption about what the child needed and there was focus on the parent or parents. Now, this standard, it puts the focus directly on the child or children to determine what are the children's needs and in ... from situation to situation, case to case that determination can differ.

Leh Meriwether:             Right, and so some of ... let’s just briefly, we're going to touch on some of the new and these are the standards in Georgia. I know that many of the states across the country share something similar but one of them is, what are the emotional ties existing between each parent and the child.

Leh Meriwether:             What are the emotional ties between each child and his or her sibling? They're not ... they are look beyond the parent-child relationship, and look to the relationship of the children, the brothers and sisters relating inside the family unit. Then you've got the capacity and disposition of each parent to give the child love, affection and the guidance to continue the education and bearing of the child.

Todd Orston:                   And again, that could be ... there’re situations where it is very clear that the mother from the time the child or children were born, was the one who had a stronger emotional tie. That was the one that really made sure that they were being educated and they were being taken care of and provided that stability that the child or children needed.

Todd Orston:                   But we have also seen many cases where that's not the situation. Where the father has actually been the one that has a stronger relationship, and has provided those things.

Leh Meriwether:             Right, and so another one is each parent's knowledge and familiarity of the child and the child's needs. That definitely comes out throughout the course of the case. If you have one parent is buying all the clothes, and taking the children to the doctors and it becomes clear who has a better understanding of those core needs. It's not to say that the other parent was a bad parent, it’s just one had focused more on the kids than the other.

Todd Orston:                   Yes, and then there are issues of stability. What is the home environment of each parent? Because, again that becomes extremely important. Where are you going to live? What's your house like? Are you going to be able to provide for the needs of the child?

Leh Meriwether:             Looking at the overall mental and physical health of each parent because that can come into play. If someone has become … if there's a mental disorder that's developed where someone's going to become extremely ill. That can ... that literally can't physically or become disabled. We’ve seen that too, where they physically can't care for the kids. All these new these factors have come into play so they've added a lot more things to dive into.

Todd Orston:                   Yes, and then of course mental and physical health of each parent. The focus not just on the child. Again, going back to stability and is a parent going to be capable of providing a healthy home for the child or children. Here's a question for you Leh, if the standard is now gender neutral, why is it that dad still don't seem to win custody that often?

Leh Meriwether:             Well that is an excellent question Todd and we're going to answer that question when we come back. And what not ... so don't go anywhere because we're going to continue to explore the question of can a guy really win custody and we're going to work to answer that question and more. You don't want to miss the answer as well as the answer to the ultimate question. Stay tuned we'll be right back.

Leh Meriwether:             Welcome back to Meriwether & Tharp radio. I’m Leh Meriwether and with me is Todd Orston. We’re partners of the law firm at Meriwether & Tharp. A law firm dedicated to helping people through difficult times. If you want to learn more about us, you can always call or visit us online at

Leh Meriwether:             Now, if you're just tuning in, let me bring you up to speed really quickly. Now, we're addressing the question of can a guy or a father really win custody in a contested custody case? This is a question that we get all the time. It seems like we get it about once a week from somebody calling in asking this question.

Leh Meriwether:             Now, to reach ... what we were ... we started off the show going into a little history. We talked about this whole doctrine that used to be in place called the Tender Years Doctrine. This doctrine, set forth that there was a presumption that the child who was under the age of four to eight depending on which statute like which state you're looking at, underage or four to eight years old, that the presumption that the child should be with mom.

Leh Meriwether:             But they did away with that doctrine and they replaced it with the best interest of the child standard and there was multiple factors for the court to look at. Then we left off the last one just asking, “Okay well, if they changed it in the late ‘90's to a gender-neutral statute, why is that the moms still seem to ... for the longest time still seem to win custody?” That's where we left it and that's where we're picking up.

Todd Orston:                   Yes, so the law changed. It went from Tender Years Doctrine to a best interest of the child standard. Now, let's start looking at things in the context of okay, the law has changed but what you didn't immediately see and to this day you don't see it. A 100% change but nonetheless what you didn't see right when the law changed is men where are winning custody more often.

Todd Orston:                   Let's look at in the context of some of the cultural issues that were in existence and are in existence today and the legal system and some of the things and challenges that we encounter in what we do dealing with this issue.

Leh Meriwether:             One of the things is going to the culture of context is the traditional role of the mother and father. You have these situations where the traditional what, I'm putting that in quotes, "Where the father worked"-

Todd Orston:                   I saw the bunnies.

Leh Meriwether:             ... yes, "and the mother stayed home with the kids." When we talk about ... in the last segment, we went over some of the factors for the court to look at and that's the familiarity with the children, where do they go to the doctor, the schooling and all that sort of thing.

Leh Meriwether:             Well, the mom in that role, she's going to naturally be a better fit and under those categories where the courts still look at mom ... I’m not trying to score things, but I mean mom's just going to be in a better, a winning position over Dad. I hate to use that word, but she has a better familiarity with the kids.

Todd Orston:                   End of story, when the judge is making a determination on custody, the court is going to look at certain things including like we're going into before, the connection that the parent, each parent has with the child and the child's daily needs. Whether they are medical needs, educational needs, extracurricular activity even the religious need and start looking at okay, well who is providing more for the child? And because of these traditional roles, which are changing and have changed dramatically over the years, the easy answer was mom.

Leh Meriwether:             Yes, and so it was kind of no surprise that moms would continue to win custody in those scenarios and also that you’ve got judges that have an enormous docket. I was looking at some of the counties, and a judge could easily have a thousand family law cases in front of him or her. And so, it's easy to say, “You know what, the kids have been with mom. Mom has been the stay at home mom. I'm just going to”-

Todd Orston:                   Maintain the status quo.

Leh Meriwether:             Maintain the status quo. It's and I'm not trying to take anything away from the judges. The judges do their best, they are given a very difficult task, and they try their best to make the best possible decision but when you're looking these factors that's the easy answer.

Todd Orston:                   And judges will even tell you that you do not really want to have to ask the court to make these decisions. Because the judge doesn't know you, the judge doesn't know your child, but you are then asking the judge to step in and make big decisions relating to the management of your family.

Todd Orston:                   And judges we've heard that speech given by many judges so many times. But end of story, if you're going through a divorce, and you can't reach an agreement then the court's going to have to make those decisions.

Leh Meriwether:             That's why we like to work to resolve cases rather than trying them. All right, well let's talk about ... so that's a big explanation for a lot of the results that we have seen but let's talk about the legal system. Let's get some context behind the system. I mean we first talk about the laws.

Leh Meriwether:             Some people come in there go, “Well, these laws just don't seem fair,” or “I don't like how the judge is the final arbiter if my husband and I are, or my spouse and I can agree, why is it the judge gets to decide where our children lie? Where they're going to stay, where they're going to sleep.”

Leh Meriwether:             Well, those are the laws that the ... if we talk about from a legislative standpoint, the residents of each state elect their representatives who go to their local state government who in turn make the laws. These are the laws that have come about from that system. Don't get upset when ... the system is the way it is because that's a result of years of decisions being made by the population electing certain people.

Todd Orston:                   It's the system we have to work within and the laws that we have to abide by.

Leh Meriwether:             Yes, and so don't get angry at the judge if the judge is applying the law that he or she has been given. That's again trying to give context so we don't blame people but maybe we ... maybe if there's something wrong with the system, we work to fix the system.

Leh Meriwether:             All right, now let's talk about something else. Judges in a lot of states in Georgia, they’re elected officials. I mean not officials but they’re elected into office and when a person becomes a judge they go to ... what I've heard is judges school. I don't know what the official term is. I’ve just hear this through CLEs.

Todd Orston:                   It sounds fun. The recess, they play kickball during the afternoon. All right, I'm sorry judges. It’s any judges who is there. I'm only kidding. It's a lot more serious than that.

Leh Meriwether:             I have heard from judges that ... so I've been to several CLEs. I went to a conference one time several years ago where several of the judges told us that they were taught in Judges school that it was important for a child to be with one parent during the course of the school year for stability purposes.

Leh Meriwether:             That sort of came where the dads would just get every other weekend and moms would have the kids the primary ... primarily during a certain period of time. So, something was being taught in the schools at least that's the impression I've been given by the statements by the judges.

Todd Orston:                   I have no doubt because I went through guardian ad litem training and when I did the guardian ad litem training ... and a guardian ad litem is somebody who's appointed by the court to investigate, do what the court can't do, which is investigate talk to witnesses and then give an opinion to the court as to what should happen relating to custody. When I ... many moons ago, took that class, they brought somebody in who talked about the evils.

Todd Orston:                   Basically, I'm being a little bit dramatic here, but the evils of joint physical custody. And brought somebody in to talk about how it negatively impacted his life and I can only say that from that point to now there has been a dramatic shift but that's what was being taught. Yes, I have no doubt that judges were taught the same or something similar.

Leh Meriwether:             It creates ... there's that and sort of inherent bias unfortunately. Now, so you've got that built in bias and the good thing is there is we're going to talk later about how to overcome those things and there's things that are in place. I just want to give a little light here. I don’t want say everything sound hopeless.

Todd Orston:                   And so, let me ask you this, so what about just even life experience?

Leh Meriwether:             Anybody that you bring to that judge's bench has had a life history and through ...and that life history is going to influence the decisions they make. Now, I want to be clear here, I'm not saying that judges are intentionally bias, what I'm saying is that they do their dandiest, they do their best job they know how to do to make good decisions or the decisions that they think are the best based on the information they have that's placed in front of them in a trial. That being said, each one of us, looks through facts as the lens of our life experiences.

Todd Orston:                   If your grandmother I mean ... if you look back and you think about your grandparents and they were raised by their grandmother and grandpa worked. Then you look at your parents and dad worked and mom was in the house and took care of the kids. Then you look at your own family, meaning the judge's family and the judges on the bench and the wife is at home and is taking care of the family, which is hard work.

Todd Orston:                   Then they're going to take the bench and when they're thinking about what the norm is or should be. In their mind what they're bringing with them to the table and even is this thought of well, of course it should be dad working and mom taking care of the family.

Leh Meriwether:             Yes, and I've seen ... I've actually seen from the bench that women judges that say, “Hey, look my husband and I work through the course of our relationship and we raise two kids just fine. I've seen them ...” and I'm not trying to pit men judges ... male judges against women judges. I'm just stating observations to give context.

Todd Orston:                   Right, there’s a different lens.

Leh Meriwether:             There’s a different lens and they have said, “Well, I think based on my experience, that joint physical custody is okay.” Whereas I've seen other judges say ... and including some female judges say, “I don't think that joint physical custody is okay.” Those things happen and that's the advantage of hiring a lawyer because a lawyer is going to know a little bit about or sometimes a lot about their judge and their history.

Leh Meriwether:             I've heard judges say from the bench like one judge from his perspective had been through six divorces because as a child, each ... his mom and dad each had three divorces so from his perspective, he had six and he really hated divorce.

Todd Orston:                   All right, so Leh, before we go any further, I'm a little worried we're creating sort of a gloomy picture here. How do we overcome the challenges that culture on the practice side of our legal system present?

Leh Meriwether:             Another excellent question.

Todd Orston:                   I have a ton of them.

Leh Meriwether:             You do and again unfortunately, were going to have to wait till next segment and answer it. Hey, don't go away, when we come back we're going to continue to dig into this and answer the ultimate question of the day. Don't go away.

Leh Meriwether:             Welcome back to Meriwether & Tharp radio. I’m Leh Meriwether and with me is Todd Orston. We're partners of the law firm at Meriwether and Tharp. And you're listening to Meriwether & Tharp radio. In this show we share our experiences and knowledge to help people navigate challenging times in their marriage and with their family. If you want to learn more about us, you can call or visit us online at

Leh Meriwether:             Now, if you're just tuning into the show let me just give you a quick recap, we have been talking about a question that we get every single week, just about. And the question is, can a father or a guy, can he really win custody in a contest a custody case? To give you a quick recap, we were trying to create some context of people understood what's all going on in these contested custody cases and give a little history of what's going on so that people don't think there's some giant conspiracy against fathers.

Leh Meriwether:             Now, we represent both men and women so we have some wonderful contexts as far as how what each person thinks and as they're going through a divorce and it gives us wonderful perspective. We're trying to give the listener some perspective here as well. We talked about how there used to be this thing called the Tender Years Doctrine years ago in the 80's and ‘90's that's now been done away with thankfully but, there was this presupposition that moms should be primary caregivers of kids under the age of four to right depending on what state you're in.

Leh Meriwether:             It is been replaced by the best interests of the child standard. Now, that still didn't change things as far as it … while it became a gender-neutral statute, unfortunately moms or not unfortunately I should say, moms are still winning custody when….

Todd Orston:                   It didn't change overnight.

Leh Meriwether:             The stats, it didn’t change the statistics. If you're looking at statistics but we talked in the last segment about the cultural aspects involved as well as some certain inherent life experiences that can create biases, some old trainings that may have gone on for guardian ad litems and for judges that can create sort of this presumption from a practical standpoint that the children should be with their mother and not necessary with the father.

Leh Meriwether:             We're trying to give all this context so that we can answer this ultimate question now we haven't finished and the last segment Todd asked another really good question about are we painting-

Todd Orston:                   Nice.

Leh Meriwether:             You don't remember?

Todd Orston:                   I know it doesn't happen very often.

Leh Meriwether:             Is this really a gloomy picture? Are we really setting the stage to answer the question? No. What we're really doing is just giving context and so we're going to explore one more thing that comes into play when making decisions, when it comes to primary physical custody and contested custody case.

Leh Meriwether:             We're going to talk about experiences from the bench. When I say from the bench, so well, judges have experiences before they ever get on the bench but-

Todd Orston:                   Which can affect the way they see the world, it can affect-

Leh Meriwether:             Your facts.

Todd Orston:                   Absolutely. It may create biases but it definitely affects the lens with which they listen to the cases and see and hear the cases. Absolutely, it can influence them.

Leh Meriwether:             Yes, and so now we're going to talk about what happens in some cases that they have to go through a difficult trial or hotly contested trial and what sort of that ... how that impacts them. I mean you've heard this the phrase, what is it? One bad apple spoils the bunch and I used to have this ... I used to have a teacher in school, his name was [inaudible 00:25:58] and he used to always say that one or two dang fools has repercussions on us all so.

Leh Meriwether:             One of the things I know you and I've seen in the courtroom is dads will come in and it really becomes clear when the trials going on the only reason dad's asking for primary physical custody is because he doesn't want to pay child support.

Todd Orston:                   Yes, before we even get into the specifics, I will say you need to understand and I've said this to many clients. You have to understand that as important as the issues you're dealing with are, and as unique as you feel those issues may be, they are not unique. The judge you're in front of has heard that story and 10,000 more before you. When you are standing before them, there are issues that may move them and their issues that may not, right?

Todd Orston:                   That may not influence their decision ultimately but the bottom line is they have seen and heard it all. So, that's really ... I just want to clarify a little bit, that's what we're talking about. We're now talking about not biases from their just overall life experience, we're talking about how the 10,000 cases that came before yours may be affecting the way that the judge is looking at you and looking at your case.

Leh Meriwether:             I've seen judges sort of put cases in buckets like four different types of buckets and they hear these certain group of facts. Now they be ... they're unique facts but still those facts fall into this bucket with a group of other people that had the similar facts. So if you fall into that bucket all of a sudden you could be, "Oh you're the guy that ... the only reason you're doing this is because you’re controlling throughout the whole marriage and you're just trying to exert your control past the divorce and that's why you want primary physical custody."

Leh Meriwether:             And so you have to be very careful when you're when you're dealing with your case that you don't fall into that bucket.

Todd Orston:                   Yes, because if you do, what you're doing is you're basically almost guaranteeing the court's not going to like, I'm not going to say you but he’s not going to like your story, he’s not going to basically feel like you are here for the right reasons, you're making the requests because of a genuine sincere desire to get whatever it is you're asking for that it is really ... there's a pretext that you're doing it for some ulterior with some ulterior motive.

Todd Orston:                   That's where you get into real problems and that's when you basically a man, a father can lose custody.

Leh Meriwether:             All right.

Todd Orston:                   Because other things may be working in that person's favor but if you come and you do or say the wrong things-

Leh Meriwether:             You fall into that bucket.

Todd Orston:                   You fall into that bucket.

Leh Meriwether:             And then and then it's over at that point. Here's another one we've seen another bucket is where the wife files for divorce for whatever reason and the husband knows that there's nothing more important to the wife than her children. He threatens, I want primary physical custody just to intimidate his wife and get her to consent to a really unreasonable settlement proposal involving her not getting very much the marital estate.

Leh Meriwether:             And where you don't want to ... definitely don’t want to fall in that bucket.

Todd Orston:                   No, and that's where when a judge thinks that you are doing this solely to retaliate or to basically hit the spouse where it hurts, then the court's going to make a bunch of assumptions, most important of which is that you cannot co-parent with the other party.

Todd Orston:                   If you're willing to go to that depth and you're willing to do things to solely to try and hurt the other party then as a co-parent you're probably not going to be very good. You're constantly going be thinking of things in terms of win or lose and that's not how you should raise a child.

Leh Meriwether:             That's why you fall into that bucket where it’s going to cause you to lose. Another example I’ve seen is where we’ll give one or two more examples of I want to say bad guys but we've seen situations where dads will ask for custody when they just ... that sort of a knee jerk reaction and they really have no business asking for it.

Leh Meriwether:             They're traveling 50%, 60%, 70% of the time, that mom's always been home with the kids. Even if he won primary, the children would be with the nanny 90% of the time. That's not a situation where you should be asking for primary physical custody.

Todd Orston:                   We get that all the time, someone will say I want custody for whatever the reason is. It's nothing so egregious like a drug addiction or alcoholism or some other issue and you start talking to them and they're like, “Oh yeah I travel all week. I'm gone on Monday back on Friday. Some weekends, I won’t be here but still I think I should have custody.” And yes we have to explain to them this is not a custody fight between the nanny and the mother.

Leh Meriwether:             Yes, and that's not and that's not a situation of where the judge has a bias. There is no ... if you look at the ... going back to those what we talked in the very first segment some of the things that the courts are under the statute supposed to look at you're not going to meet those factors.

Leh Meriwether:             The mom is going to meet those factors so this isn't a dad losing. This is just the court saying, this is what's in the best interests, the mom has primary.

Todd Orston:                   It's the judge focusing on the right thing. Focusing on what the needs of the child or children are and making sure that that focus doesn't stray, doesn't you know, focus on things other than the child.

Leh Meriwether:             Yes, and there's one more factor I want to throw out there because there are factors where the court ...  we don't have bad actors on the sides of the mom or dad but the court, they come to the court with some sort of parenting plan, that they're wanting, they're seeking and the court had had a prior bad experience with that where they said and they reject it.

Leh Meriwether:             And so all of a sudden what looks like dad's getting a really good parenting time there not because the courts had a prior bad experience where the parties kept coming back to court for contempt over a parenting plan that was similar and then the court rejects it.

Leh Meriwether:             So you have those kind of experiences that taint it and unfortunately, I'd love to be able to get the chance to sit down with some of these judges and say, “Hey can we go through your whole docket because you know, I'm concerned that you're making decisions based on,” and I'm hoping I don’t get backlash for this but, you're making decisions about these hundred people because of an experience you had with one person, whereas if we went through your full docket that maybe this one person had a bad experience but 20 people had a great experience and you never heard them because you...

Todd Orston:                   You never, right. You don’t hear about the good ones. Yes, right, exactly.

Leh Meriwether:             If you have a great parenting plan, there's no reason to come back to the court. So the court never hears the great experiences. Well, we'll get another great experience, have but before we do, we got to go to commercial break. Hey, don't go away because in the next segment we are definitely going to answer the question of can a father really win custody. We'll be right back.

Leh Meriwether:             Welcome back to Meriwether & Tharp radio. I'm Leh Meriwether and with me is Todd Orston. We’re partners of the law firm of Meriwether and Tharp. In this show we share our experiences and knowledge to help people navigate challenging times in their marriage and with their family. If you want to learn more about us, you can always call or visit us online at

Leh Meriwether:             Well, if you're just tuning in to the showed no worries we are going to give you a quick recap. So we have been actually addressing a question that we get every week, what …can a guy or a father really win custody in a contested custody case? And the first three segments, we've been trying to give context, we talked about the history of the statutes addressing custody and what the courts are supposed ... what laws are the court supposed to apply to the situation.

Leh Meriwether:             How are they supposed to decide who should be primary physical custodian? We’ve talked about cultural changes that have occurred over the years. We've talked about certain life experiences that can impact a court's decision. We've also talked about impacts that a court's experience from the bench can influence how they look at a case now we're getting to the end of the show and we've got to answer the ultimate question.

Todd Orston:                   But before we give that answer, let's first talk about ... why am I the bad guy here? All right, but no before we do let's talk about some trends that we're seeing that will hopefully show that there is a positive outlook. That we are seeing some positive changes that are affecting custody decisions by the courts. Let's start with culture.

Leh Meriwether:             Yes, we’re seeing more and more cases where both the father and the mother are working full time and we’re seeing situations where there’s more of an equal bearing of the load when it comes to the caring for the kids. That day to day, who stays up late with the kids when they have a fever, who takes them to the doctor-

Todd Orston:                   Who takes time off of work, right exactly to deal with issues. School is canceled whatever. We are seeing that there is more of a sharing of responsibility and this goes back to the what the judge brings with him or her to the bench based on the experiences and they’re seeing this.

Todd Orston:                   And not only that, I'm sure in their personal lives, they ... some of the judges, their wives work, their friends, the wives may work. Everybody is working, everybody is taking care of the family and that's some of that positive baggage they're bringing in to every case that is before them.

Leh Meriwether:             There's more ... what they called longitudinal studies coming out now where they've been following children following after a divorce and examining how they do in society. When I talk about not just their grades, we're talking about what ... I mean grades are important don't get me wrong but what really matters is how you do in your 20's or 30's because we've seen people with straight As, I mean just can't handle themselves in a job environment and we've seen students excel in the work environment.

Leh Meriwether:             What we're trying to say is they have been following children into the work environment as they can become older and mature adults and they're finding that some of these like joint physical custody arrangements are ... because I know we're not necessarily not talking about joint physical custody but we're just talking about a trend. We’re seeing where these longitudinal studies where they follow him for 20 years, the kids are fine. They're actually doing very well.

Todd Orston:                   And states are starting to recognize these longitudinal studies like recently Michigan.

Leh Meriwether:             Michigan.

Todd Orston:                   Michigan, yes. Michigan that's how our scooby-doo. All right exactly.

Leh Meriwether:             Yes, so Michigan had a bill, the last thing I saw in it was an August of this year but they have a bill where the court’s supposed to start with what's in the best interest of the children is 50-50 custody and there has to be... haven't dove into the bill hasn't become a law yet. I don't think it's fully passed. What I've read about is that it's making its progress through at the legislature there.

Todd Orston:                   Which is such a huge change. Again, going back to what we're talking about before where the law was and where it is starting to get to in states like Michigan where a starting point might end up being 50-50. The fact that legislatively it's even being discussed-

Leh Meriwether:             Is big

Todd Orston:                   Is huge.

Leh Meriwether:             Yes, and so the other thing is that there are now experts out there, child custody experts who are also aware of these studies and they can come to court and get in front of the judge and in a very scientific way, as scientific as you can get with psychology because it's as much of an art as a science but you can explain as in ... from an expert standpoint, judge here's why I think don't put this case into a bucket.

Leh Meriwether:             Here's what I've observed, here’s what I think would be the best interests of the child. And the wonderful thing about these experts is they’re very professional. They're an emotional when their presentation ... they're trying to present their information in a professional sort of a scientific issue you can get when it comes to psychology to tell the court, this is the way you should rule.

Todd Orston:                   Yes, and again back in the day when the Tender Years Doctrine was in place, you could probably hire an expert but they were fighting an uphill battle because you were standing in front of a judge who came to the bench already thinking that this is the way it's got to be, this is what's reasonable, this is what's good and in-

Leh Meriwether:             And with the best interest of a child.

Todd Orston:                   Yes, but now it's very different. We have strong experts who can step in look at not just a general area of law or a general law. Okay, or a body of laws but can actually also say, not only is it fine generally speaking but for this family and these children, it would be not just fine, they would bloom at under this kind of a plan and the judges don't have this negative baggage where they're going to just shut them down and go, “No, clearly we’re not going to do that.”

Todd Orston:                   More judges are being pushed to make a decision of joint or even giving father custody and they're not fighting as much against it. I mean it's happening more and more often.

Leh Meriwether:             And so to go to the ultimate question, can a father actually win custody?

Todd Orston:                   And that's the show, thanks for tuning, I’m only kidding, only a joke.

Leh Meriwether:             So, but you know really to be truthful that's the wrong question. I know if we can throw a curve ball here, so I could be the bad guy now. Really, the question should be what is in your child's best interest?

Todd Orston:                   Now, let me just ... before you go further let me say because, I am looking like the bad guy here. I'm blaming you right now. I will say first to answer the question I will say more and more and more often judges are awarding custody to fathers. We are handling those cases, we are winning custody for fathers, other attorneys are winning custody for fathers and judges are not just blindly going into these situations with this preconceived notion that only mom can be the primary custodial parent. Having said that continue.

Leh Meriwether:             Gosh, you stole my thunder strike, just kidding. No, the reason I say that is because, the big thing is when you say I want to win custody, all of a sudden, it's not about your children. The focus becomes getting that W. I want to win and when you when that focus becomes, I want to win, these judges can see that.

Leh Meriwether:             They’re actually trained to spot these things and at that point everything you’re phrasing, all the evidence you present to the court now becomes in the context of winning rather than you know what judge, this is what's in my children's best interest.

Todd Orston:                   You're losing sight of why you’re really there to make sure your children are taken care of, that it's a healthy environment and a healthy kind of schedule that they are going to do well under. Okay, so-

Leh Meriwether:             And I'll add to this ...  and I'll add this to it too because when you change the question to what is in my child's best interest? All of a sudden ... you remember we had that show not too long ago about conversations and how things break apart in a context of a divorce.

Leh Meriwether:             We talked about the different hierarchies or communication. Well, if you're focusing on what's in the best interests of your divorce, you're not so hyper focused on what the other parent is saying like you're not reading into it something, a statement that doesn't exist like in other radio show. What you're doing is you're focusing on your children.

Todd Orston:                   And you're fighting-

Leh Meriwether:             And the communication gets better.

Todd Orston:                   That's right, communication will get better. You're going to fight the good fight, you're going to fight for something that is reasonable you're not going to lose sight of what's actually going to allow your child's to do well and to succeed and all of that be healthy. If you are hyper focused on the win, you're going to lose sight of the strategy.

Todd Orston:                   We sit down with our clients and we have to come up with a strategy and not that this is some game but the bottom line is we need to figure out the facts and gather the evidence. If you start thinking of things in terms of a win or a loss, you're not going to be able ... A, your strategy is going to be flawed or if you have a good strategy, you're going to lose sight of that strategy and bad things will probably happen. You're not going to get what you're looking for.

Leh Meriwether:             And I saw, and I had a case where the dad was wanting custody but ... well, he wanted joint physical custody actually and so and he traveled 50% of time but he literally changed his schedule for work so that he could be home with his kids and we had an expert who identified that the parents actually had specific roles that they had agreed to during the course of their marriage and it wasn't that the dad was incapable of changing roles but it was just the way they laid out things and then based on his investigation, he thought it would be in the children's best interest to have 50-50 custody and that's what ultimately happened.

Todd Orston:                   Well, the father was able to show his focus, he was on the-

Leh Meriwether:             On the right thing.

Todd Orston:                   Right, on the children.

Leh Meriwether:             And so well that about wraps up the show. The ultimate answer is yes, guys can win custody but you need to make sure you're asking the right question so that you don't lose sight of what's really important. Hey, thanks so much for listening you can read more about us online at

Leh Meriwether:             You can also listen to the show again in iTunes. Just look for divorce team radio. You can also like our Facebook page and even post a question at Facebook.comatlanta.divorce.lawyers. Thanks for listening.

Announcer:                      This audio program does not establish an attorney client relationship with Meriwether & Tharp.