Not that many years ago, the “tender years” doctrine governed most courts’ custody decisions, giving mothers the custody advantage, often by state law, particularly when young children were involved. In the 21st century, custody decisions are made without any legal gender bias, but mothers still receive custody of young children more often than fathers.
Most states base custody decisions on certain factors that help courts determine what custody arrangement is in the best interests of each child. Though the factors vary by state, many states’ laws make specific reference to the fact that courts cannot favor one parent over the other in custody decisions simply because of gender. Factors typically include the health of the parents, stability for the child, age and gender of the child and, sometimes, the wishes of the child.
Frequently, one of the factors courts consider is which parent has been the child’s primary caregiver and courts often give preference to this caregiver, regardless of gender. However, mothers are usually the primary caregiver during a marriage. As a result, mothers receive custody about five times out of six, according to the United States Census Bureau. While fathers may be able to combat the preference for the primary caregiver, it can be difficult. For example, if the mother has recently developed mental health problems that could be disturbing for the child, the court could determine that the father is better equipped to care for the child.
Parents can ask their divorce court to give them shared, or joint, custody. In this arrangement, both parents share legal custody -- the right to make important decisions for the child -- and physical custody -- the right to spend time with the child and make day-to-day decisions. Since parents must work well together for shared custody to be successful, most courts will only award shared custody if the parents request it.
A court can also split custody by giving one parent sole legal custody, sole physical custody -- or both. In a sole custody situation, one parent has primary responsibilities, though the other parent can have input on the decisions and may have extensive visitation rights. Typically, a court won’t award sole legal and physical custody to one parent unless the other parent is unfit, perhaps due to a history of violence or mental instability.