Family Law

Child Custody Myth: Mothers Are First In Line

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How times change. 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 usually assumed 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. In fact, more often than not, the goal is to make sure both parents are involved in the child's life.

Debunking the Myth of Favoring Mothers

Over the past few decades, attitudes about gender roles shifted. Changes in society and culture have pretty much destroyed the belief that a mother is the better parent and should automatically receive 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.

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.

Why the Shift Happened

A combination of factors essentially eliminated the myth that mothers are the better choice in custody disputes, including:

Change in Legal Thinking

Perhaps the most important factor in moving away from the tender years doctrine is today'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 and stability 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, both parents have the right to show that giving custody to the parent 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. In fact, in states like California and most other states, the courts aren't allowed to give a preference to either parent based solely on the parent's gender.

Types of Custody & the Recent Trend

When parents divorce or separate, there are two parts of custody to consider:

  • 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 joint. For example:

  • Sole physical custody means the child lives with one parent while the other parent has visitation rights
  • Joint physical custody means the child has two primary residences, even if the time in each is not equal
  • Joint legal custody means both parents share in child-rearing decisions

Times Have Changed Here, Too

In years past, mothers often got sole physical and/or sole legal custody because of the tender years doctrine. Today, sole custody awards are giving way to joint custody arrangements or parenting plans. This is because of the belief and desire that children should keep and maintain strong relationships with both parents whenever possible.

It's important to remember that your child needs and deserves to have both parents involved in the child's life. Rather than relying on an outdated myth, both parents should focus on sharing in the child's life and serving the child's best interests. By doing that, you can find a custody arrangement that's right for the entire family.

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.
  • 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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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
188 East Post Road, Suite 300
White Plains,NY
(914) 946-9468 View Profile
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