Family Law

Child Custody Myth: Mothers Are First In Line

By Kristina Otterstrom, Attorney
Do gender roles affect custody decisions?

There’s a long-standing myth that women always have an advantage when it comes to child custody. For example, many people may be under the mistaken impression that a mean, abusive mother would get custody over a kind and loving father. And while 50 years ago, courts clearly preferred to grant custody to mothers, that just isn’t the case today—men and women are on equal footing. Today, in every state, a child’s best interests is what guides custody decisions. Judges look at many factors when determining custody, but gender isn’t one of them.

Historical Preference for Mothers

We live in a different world than our grandparents. For much of our country’s history, few women worked outside the home. There were strong gender stereotypes that permeated mainstream American culture. Namely, a woman’s role was in the home, because the belief was that she, by nature, was more caring and better suited to take care of children. Those stereotypes helped create what was known as the “tender years doctrine.”

Tender Years Doctrine

This doctrine gave women a distinct custody advantage. The doctrine said women should have custody because young children needed a mother’s love and care. The general consensus of the time was that mothers were better suited than fathers to care for a young child’s needs.

Shifting Attitudes and Shifting Laws

By the end of the 20th century, the tender years doctrine and attitudes associated with it had mostly disappeared. Gender equality had replaced outdated gender stereotypes, and the father’s rights movement was taking hold. The biggest change was the use of the child’s best interests standard.

While most courts no longer refer to the tender years doctrine, in some circumstances, there may be a temporary custodial preference in favor of the mother, but not because of a notion that she's better suited to raise a child. Most courts will find that for nursing newborns and infants, it may be in the child's best interests to give the mother all overnights until the baby is older. In these cases, a court may delay giving the father overnights until the baby is done with nighttime nursing, but will probably increase the father's daytime visits, as long as they don't interfere with the baby's nap schedule. As you can see, these custody arrangements are based on the child's best interests, not the father's or the mother's.

What Is the Best Interests of the Child Doctrine?

Today, a child’s best interests are central to any custody decision. The best interests of the child standard is gender-neutral. Under this standard, courts determine custody based on a child’s well-being, not a parent’s gender. A judge will consider several factors when assessing a child’s best interests, including:

  • the child’s relationship with each parent
  • the child’s emotional, physical, educational, and medical needs
  • each parent’s mental and physical health
  • the child’s preference, if the child is of sufficient age and abililty to make a mature decision
  • each parent’s ability to provide a stable environment for the child
  • the child’s adjustment to school and community
  • either parent’s history of domestic violence or abuse, if any
  • each parent’s historical involvement in child caretaking duties
  • each parent’s history of drug or alcohol abuse, if any, and
  • any other factor the court deems relevant.

Most states also have laws that forbid a judge from using a parent’s gender or sexual orientation as the sole factor in granting or denying custody. The primary focus should always be what kind of custody arrangement would best serve a child’s physical and emotional well-being.

What Does a Typical Custody Arrangement Look Like?

In most custody arrangements, judges want both parents to have as much time as possible with their children. For example, both parents can share physical custody (where child lives) and legal custody (decision-making power on child’s behalf). This may mean the child spends the first four days of the week with dad and the last three of the week with mom. Custody arrangements where parents split or share custody are called “joint custody arrangements.”

Alternatively, either parent may receive sole physical and/or legal custody of a child. Sole custody arrangements are more common when parents live far away, don’t get along, or one parent has never bonded with the child. In cases of abuse or neglect, a judge may require the abusive parent’s visits to be supervised.

A child’s needs should always come first. Both parents should focus on being a positive presence in the child's life and serving the child's best interests.

Questions for Your Attorney

  • How can I improve my chances at receiving sole physical and legal custody?
  • I travel a lot for work, but feel like I would like to share custody with my ex. What can I do?
  • My wife has been a stay-at-home mother throughout our marriage. Will that hurt my chances of obtaining custody?

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This article was verified by:
Dominic J. Baccarella | May 06, 2015
4144 N. Armenia Avenue, Suite 220
(813) 254-8998 View Profile
This article was verified by:
Darren DeUrso | May 08, 2015
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White Plains,NY
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