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Parenthood, Gender Bias, and Custody Laws: Mommy or Daddy?

Parenthood, Gender Bias, and Custody Laws: Mommy or Daddy? - National Family Solutions

Do mothers have more rights to child custody than fathers? The short answer is no. Mothers do not have more rights to child custody than fathers do. Despite tropes, anecdotes, and assumptions, US custody laws do not favor one gender over the other. Instead, they explicitly favor the child and the child’s best interests. However, because mothers tend to be primary caregivers more often than fathers, they have more leverage in a custody battle. This means that custody is awarded to the mother in most cases where shared or joint custody is not an option.

Are There Gender Preferences in Custody Laws?

Current custody laws center around identifying the child’s needs and awarding custody and visitation rights based on those needs and each parent’s ability to fulfill them while working together (or apart). Certain factors, including each parent’s bond with the child, their lifestyle, time commitments to childcare, and communication with the other parent, influence how custody battles go.

Legislature dating back to the 19th century explicitly favored giving custody over a child to the mother during the child’s “tender years,” reversing the previous custody trend being largely awarded to fathers due to their role as financial providers. However, while the tender years doctrine has long since been overturned, custody battles continued awarding mothers for decades to come.

This is because mothers were often the child’s primary caregiver, to begin with, thus best suited to continue raising them. As a growing number of mothers work long hours away from home and more fathers take on primary caregivers, custody battles, continue to steer closer towards equal outcomes slowly. But the change is prolonged. Many women work full time but also largely take care of the kids. Traditional gender roles remain the norm, and that is reflected in custody outcomes.

Perceived preferences for one parent over the other have nothing to do with their gender and everything to do with their involvement in the child’s life and care. While custody battles are still often in favor of mothers, there are several complex factors behind that. The numbers have been skewing closer towards an equal balance over the last few decades as traditional gender roles continue to shrink in prevalence.

Why Do Mothers Receive Custody More Often?

Mothers still receive custody more often because they tend to fulfill the role of primary caregiver more often. The primary caregiver’s role is represented by the parent’s personal commitment to the child’s care and upbringing. This includes (but is not limited to):

    • Taking them to doctor’s appointments.
    • Bathing them.
    • Feeding them.
    • Bringing them to school.
    • And meeting other basic needs.

This perception can further skew a father’s chances of gaining custody by making them think the system is rigged based on gender rather than the role – in such cases, it becomes a self-fulfilling prophecy, as the father’s legal strategy doesn’t bank on full custody, but may instead limit itself to better visitation rights.

Overwhelmingly, the research supports shared custody – and to that end, parents who share the responsibilities of childcare and get along when it comes to working together as caregivers are likely to receive shared custody. It is often usually once certain disqualifying factors enter the picture that things skew towards one parent.

What Factors Influence a Judge’s Decision?

If you are a divorcing dad looking for ways to improve your odds at custody, knowing what the courts consider most heavily can help your chances, regardless of whether you aim for sole custody, joint custody, or better visitation rights.

Parenting Skills and Environment

One of the biggest factors influencing a judge’s decision is each parent’s active role in the child’s life. While mothers are more likely to be primary caregivers, this is not always the case. The primary caregiver will often have the most leverage, as they are already making a greater commitment.

If you spend more time looking after your child than the mother, you are likely a better candidate for sole custody, should joint custody not be in the cards. If you have not spent as much time with your child as their mother, then getting as involved as possible should be a goal for you. The courts want more than just a show – they need a history of serious commitment.

Parental Bond

The courts will also consider the child’s relationship with their parent. Very young children who are still being breastfed will most likely not be separated from their mother unless there are serious red flags necessitating separation. This is because the child is physically bonded to the mother during breastfeeding.

However, if the child can only be bottle-fed and is largely being fed by the father, he will most likely have developed that bond with his child. This is just one example of how the parental bond factors into a child custody decision.

Relationship Between the Parents

How parents interact with each other directly impacts their children and plays a role in their competence as caregivers in the court’s eyes. Parents who choose protracted custody battles to lash out at their former partner, were abusive to the other parent, or used their relationship with their child to hurt the other parent, will have a harder time arguing for custody rights.

Preferences are given towards parents who put their children ahead of their own needs and ahead of their personal feelings towards the other parent. State-specific information, individual experiences, and a thorough understanding of one’s responsibilities and rights under US family laws are important when considering fighting for custody.

To that end, this article’s information is meant to help provide a run-through of the differences between a father’s and mother’s chances at custody in the US and cannot substitute real legal help. If you are a divorcing father or mother wondering about your odds in the legal system, seek the help of an experienced legal professional.

The law itself is not biased towards men or women but favors those more dedicated to playing a direct role in their child’s life. An attorney will help you understand what the courts are looking for in a primary caregiver and attentive parent and how you can make the strongest possible impression.

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