Are Courts More Likely to Grant Child Custody to Mothers Than to Fathers?

Parents who are seeking a divorce will need to come to a decision regarding many issues related to the marriage, most importantly, perhaps, who will have custody of a shared child and what the visitation rights of the other parent will be.

When parents need to make a child custody decision, they are strongly encouraged to reach the decision together outside of the courtroom, and to submit an agreed upon plan to the court. When parents are unable to work together to decide, however, they must turn to the court, where a judge will be responsible for issuing a decision.

However, courts and lawmakers have more recently realized that the mother is not always ideally positioned to offer a safe, secure, and healthy environment for kids.

Today, judges ask which parent is most capable of providing a safe and secure environment for a specific case. The court will ask the following questions to understand which parent is most likely to take care of the child’s best interests:

• Which parent is most capable, financially, and physically, to provide for a child’s necessities such as medical care, food, clothes, and shelter?
• What is each parent’s mental and physical health history?
• What is the age of the child, what is the mental and physical health condition of the child, and (if the child is old enough to decide) does the child have any preferences?
• What is the profession of each parent? What are their lifestyle habits, both good and bad?
• Is the child especially close to either parent? How likely is that parent to engineer an emotional bond between the child and the other parent?
• If living with one parent vs. the other, will the child have to undergo life changes such as moving to a new school or making new friends?
• What are the desires of each parent?
• Has either parent brought forth malicious or false charges of child abuse against the other parent? Did one parent abandon or walk out on the child?

After determining the answers to such questions, a judge will decide which parent should be awarded primary custody as well as determine visitation periods for the other parent. These questions are gender neutral. Therefore, the law does not give preference to either parent.

Maternal Preference Is a Thing of the Past

Courts used to favor mothers in child custody decisions, strongly believing that a child separated from their mother was something that would be detrimental to all parties involved, in part because of a mother’s “natural ability” to nurture a child. This was referred to as the Tender Years Doctrine, and existed well through the mid-1900s.

Today, all states have gender neutral child custody laws, which means that giving preference to a mother in a child custody case based purely on the fact that she is a woman and the child’s mother is no longer permitted. It should be noted, however, that while courts are not legally allowed to consider gender of the parents when making a child custody decision, some judges may continue to do so, perhaps unconsciously.

Biases Still Exist

It would, nevertheless, be a display of naiveté to assume that biases do not exist in a judge’s mind. Consequently, it may seem that the law does not support gender-based custody and visitation determinations.

However, at times, such decisions are based on the pre-conceived notion that mothers are more caring than fathers. Regardless, the law provides fathers with equal rights to seek and argue for complete custody of the children.

For this reason, the legal trend these days is to provide shared custody to both parents. In this case, the child spends some part of the week with one parent and the remaining with the other.

This arrangement is most suitable when the parents reside nearby. However, in some instances, it is possible to share custody by allowing the kids to spend large amounts of time with one parent at a time (such as summer and winter breaks), and the remaining part of the year with the other parent.

You should schedule a consultation with a skilled lawyer to help you with the process if you are trying to obtain your children’s custody. An experienced lawyer will be able to help you avoid running into legal problems that could impact your custody bid as well as provide robust guidance through the process, creating a solid case for custody.

Primary Caregiver

A critical factor in a custody determination is which parent has been the child’s primary caregiver. It is the parent who has been nurturing the child, who is best able to meet the needs of the child, and who has shown the most willingness to accept parental duties.

The standard of primary caregiver aims to identify which parent has been responsible for meeting a majority of the child’s day-to-day needs, such as bathing, feeding, waking and putting to bed, arranging for childcare, scheduling doctor appointments, and so on.

Parent-Child Bond

Courts also use another factor in determining custody, which is the relationship between parent and child. Younger children typically share a stronger bond with their mother compared to the bond with their father. This reflects the traditional parenting roles when the kids are young, and it is not necessarily an indication of the father’s parenting skills.

A mother is often the one to feed the child from the time they are born through the toddler years. Such closeness enables a different type of bond than the one a father might share with a child.

Factors the Court Considers in a Child Custody Case

If courts aren’t allowed to consider parents’ genders, what do they weigh when making a child custody decision?

Per Section 403.270 of Kentucky Code, the court is required to make a child custody decision that is within the child’s best interests. To determine the child’s best interests, a number of factors are considered, including:

• The wishes and preferences of the child (when the child is of an appropriate age and maturity level to express said preferences);
• The relationship that the child maintains between each of their parents;
• The child’s adjustment to community, home, and school;
• The wishes of the parents;
• The physical and mental health of all parties;
• Any acts of abuse or domestic violence;
• The amount of time and effort each parent has spent nurturing and caring for the child;
• The relationship the child maintains between any others in the home, such as a sibling; and
• More.

Keep in mind that if the child involved is an infant, the child’s need to breastfeed may be considered in weighing the child’s best interests, but it is not considered independently of other factors and therefore is not a gender preferential consideration.

Improving the Outcome of Your Child Custody Case

Both parents in a child custody case, regardless of gender, have an equal opportunity to seek custody of their child. Things that may help your case include demonstrating the court that you are the child’s primary caregiver or are responsible for the child’s wellbeing the majority of the time; testimony from other family members, members of the community, and the child’s teachers and other caregivers; and showing the court how you will be able to balance caring for the child while also continuing to work and provide.

Our Attorneys Are Here to Help You

Seeking custody of a child is a very emotional experience, and one that may leave you feeling both confused and exhausted. When you contact the law offices of John H. Ruby & Associates, our Kentucky child custody attorneys will provide you with the legal advice and support you’re looking for. Our talented child custody lawyers understand what you’re going through, and care about the outcome of your case.

Please use the online form on our website to request more information, or call us today at 502-895-2626.