Skip to Content
Claery & Hammond, LLP Claery & Hammond, LLP
Call Us Today! 310-817-6904

What Rights Do Stay at Home Dads Have?

A Legal Team You Can Trust

Fifty, thirty-five, or even twenty-five years ago, you’d have a difficult time finding a stay-at-home father. Now, stay-at-home mothers – those were easy to find. In the 1950s, 1960s, and 1970s, stay-at-home mothers graced every block in the suburbs of America. It would be much harder to find a mother who worked 40 hours a week at a regular job than it would be to find a stay-at-home mom, because those were everywhere.

Fast-forward to today, and women in the workforce has changed dramatically. Some say it’s because of feminism, while others say it’s because of economic conditions. Either way, a huge percentage of the female population works full-time in the United States.

According to the U.S. Department of Labor, “Seventy percent of mothers with children under 18 participate in the labor force, with over 75 percent employed full-time.” The DOL continues, “Mothers are the primary or sole earners for 40 percent of households with children under 18 today, compared with 11 percent in 1960.” What does this mean? It means millions of American children are either being cared for by nannies, daycare providers, or stay-at-home dads.

Stay at Home Dads Are Still ‘New’

The concept of a stay-at-home dad has become increasingly popular and socially acceptable in recent years, but that doesn’t mean society has completely adapted to the new norm. In parts of the country, the concept of a stay-at-home dad is still unchartered territory. In some ways, it’s been hard for people to get their heads wrapped around the concept of the mother being the breadwinner, while the dad stays home to raise the kids.

In our experience, a number of stay-at-home dads have questions about their rights, mainly because they’re still thinking in terms of the past, when mothers received preferential treatment in child custody cases.

Just twenty years ago, it was customary for the mother to get primary custody of the kids after a divorce, and for the father to pay her child support and spousal support, while maintaining the lifestyle established during the marriage. So, can the stay-at-home dad expect the same treatment? The answer to the question: Stay-at-home dads should not be treated any differently than stay-at-home moms.

Child Custody Laws Are Gender Neutral

In the past, child custody laws favored the mother. This was the case across the country, but as more (and more) women have entered the workforce over the years, childrearing has changed and society has adapted to these cultural changes. With so many dual income households with the kids being cared for by grandparents, in-home daycares, and childcares, why wouldn’t the father be given equal treatment in child custody cases?

Then, there’s the stay-at-home dad. He could be caring for the children from sunup to bedtime, or approximately twelve or fourteen hours a day while his wife is at work. If he’s been doing this since his wife’s six-week maternity leave was up, then by all means, he’s been the children’s primary caregiver – there’s no questioning that.

Since young children grow deep attachments to their caregivers (Dads included), it makes sense not to rip them away from their stay-at-home fathers, only to give them to a mother who only sees them for a couple hours in the evening Monday through Friday.

In all states, California included, the child custody, child support, and spousal support laws are now drafted so they are gender neutral. In the 1990s, the “Tender Years” doctrine, which presumed mothers should care for children under the age of 13 was in full swing, but today, it’s a thing of the past. But, it would be folly to ignore the fact that the “tender years mindset” has not entirely gone away. A lot of people still think that way.

Best Interest of the Child Doctrine

Whenever the parents are fighting over child custody, meaning, whenever they cannot agree on a child custody arrangement, the family courts use what’s called the “best interests of the child doctrine.” In this situation, the judge will carefully examine the facts of the case and render a decision based on the children’s best interests, which has nothing to do with the gender of the parents.

Family court judges have wide discretion when it comes to child custody rulings; therefore, decisions are issued strictly on a case-by-case basis. “Can a stay at home father get primary custody, child support, and spousal support?” His chances are as good as a stay-at-home mother, but it has to do with the children’s best interests and the facts of the case.

Generally speaking, the courts strongly encourage situations where the children get to have not one, but two active parents in their lives. Often, this translates to a joint custody arrangement. If the children are young, a stay-at-home father may have more parenting time with the children until they reach school age, where the arrangement may become more equal, but that is not guaranteed.

In particular, if money is an issue (the mom can’t afford to pay much spousal support), and if the father is physically able, he may be strongly encouraged by the judge to seek a full-time job himself. In that case, the parents may end up with a nearly equal custody arrangement, where they spend almost equal time with the children throughout the year – it’s all fact specific.

Child support is rather cut and dry compared to child custody. Usually, the parent who has the children for more overnights is the one to receive child support. On the other hand, spousal support is not automatic and is typically awarded based on the dependent spouse’s need and the higher-earning spouse’s ability to pay it. Couples usually negotiate spousal support based on the length of the marriage, the property settlement, and who gets the children in the divorce.

Contact Us Today

Put Your Case in Qualified Hands
  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.
  • By submitting, you agree to be contacted about your request & other information using automated technology. Message frequency varies. Msg & data rates may apply. Text STOP to cancel. Acceptable Use Policy
  • Featured Los Angeles Times Family Law Practitioners 

  • We Provide Unique, Tailor-Made Solutions for Each Client

  • We Offer a Free Initial Case Consultation
  • Our Team Has Over 50 Years of Combined Experience
  • Our  Attorneys Handle All Types of Family Court Issues
  • We Solely Focus on the Areas of Divorce and Family Law