Child Custody Myth: Favoring Mothers Text Size:

Custody of children used to be a one-way street. In the 1970s, when a two-parent home broke up because of a divorce, a court assumed that the child was better off with the mother. However, custody is now a two-way street and old stereotypes no longer apply in a custody dispute. Sole custody awards are giving way to joint custody arrangements or parenting plans.

Types of Custody

When parents divorce or separate, there are two components to consider for custody:

• Physical custody - where a child lives
• Legal custody - making decisions about a child's life, including schooling, healthcare or religion

Each type of custody can be either sole or physical. For example, sole physical custody means that the child lives with one parent while the other parent has visitation rights. Joint physical custody means that a child has two primary residences, even if the time in each is not equal.

Debunking the Myth of Favoring Mothers

Changes in society and culture have diminished the belief that a mother is the better parent and automatically receives custody. This principle was known as the tender years doctrine. Basically, it meant that a mother got custody because a young child needed a mother's love and care, and that mothers were better suited to provide for young children's needs. A combination of factors essentially ended this notion, including:

• Outdated gender stereotypes
• Equality of the sexes
• Fathers' rights movement
• Changing legal trends

Over the past few decades, attitudes about gender roles shifted. The belief that mothers are biologically superior to care for young children is a myth. There's no evidence that a mother is better than a father. In fact, fathers play an important role in child-rearing. Stay-at-home dads are increasingly common.

Perhaps the most important factor in moving away from the tender years doctrine is a court's use of the gender-neutral standard of what's in the child's best interests. Under this test, a court looks at all relevant factors and makes a decision based on what will best serve the child's overall well-being. A court considers several factors in determining what's in the child's best interests, including:

• The child's and parents' preferences
• The child's relationships with each parent and extended family members
• How to provide continuity in the child's daily life
• Physical and mental health of the parents and child
• Who's been the child's primary caretaker?
• Occurrences of drug, physical or sexual abuse

In a custody dispute, each parent has an equal right to show the court that a custody award in his or her behalf is in the best interests of the child. A parent's gender doesn't determine who gets custody - the court makes the final decision based on the best interests of the child.

Questions for Your Attorney

• Is one parent more likely to get custody?
• How will the court view working and seeking joint custody? I worked full-time so my spouse could be with our child all the time, and I don't want to be penalized for that arrangement when custody decisions are made.
• What is joint custody and how does it work?
• I want sole custody of our child; can I argue that I encouraged my spouse's good parenting and involvement, and that I am truly the primary caretaker?

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