How Does a Mother Get Full Custody?

by Katherine Hutchison
Mothers no longer automatically get sole custody in a divorce.

Mothers no longer automatically get sole custody in a divorce.

Darrin Klimek/Photodisc/Getty Images

There was a time when the U.S. legal system presumed that children belonged with their mothers and favored mothers in custody disputes. Today, the law generally presumes it is in the children's best interests to be raised by both parents, and states increasingly favor agreements in which mothers and fathers share custody. To obtain full custody of her children, a mother must demonstrate that a different custody arrangement would negatively affect them.

Best Interests of the Child Standard

Laws governing marriage and divorce vary by state, so the state you reside in will determine the types of custody arrangements available to you. Most states now use the best interests of the child standard to determine custody without preference for parental gender. The factors a court looks at to make this determination include the child’s age and specific needs; parents’ fitness and ability to care for the child; any history of abuse or neglect; existing bonds between parent and child; and sometimes the wishes of the children themselves. Courts tend to favor the parent who can provide the most stable environment for the child.

Sole vs. Joint Custody

One parent can have only sole physical custody of the children or both physical and legal custody. Sole physical custody means that children reside exclusively with one parent, while sole legal custody means that one parent -- usually the one with physical custody -- retains the exclusive right to make decisions about the children's health, education and religious upbringing. A parent with sole physical custody can share legal custody with the other parent, who usually has the right to regular visitation. In joint custody agreements, which courts often favor, both parents typically share legal custody of the children; however, depending on the state, it can also mean the parents share both physical and legal custody. It is often easier for mothers to get sole physical custody of very young children, since courts often award custody to the parent who has been the child’s primary caregiver.

Alternatives to Going to Court

Parents often work out custodial arrangements amicably without going to court. Sometimes they will decide between themselves that the children are better off living with the mother, especially when it comes to small children. In the event there is a dispute over custody, mediation can often resolve it without the need for litigation. The mediation process is often required before parents can take the matter to court. In mediation, a neutral third party helps you work out disagreements over parenting plans. If mediation fails and you must go to court, you can no longer use your gender as the sole justification for being awarded custody; this is now regarded by the legal system as an outdated social stereotype.

Factors for Getting Sole Custody

To win sole physical and legal custody, you must show the court that awarding you custody is in the best interests of your child due to factors such as your existing relationship with the child; stability of the home life you provide; inability of the father to meet the child’s needs; father's lack of involvement in the child’s life; father's failure to financially support the child; father's violent behavior toward you or the child; or father's substance abuse issues. In sum, you must demonstrate that not granting you full custody would somehow be harmful to the child. Even if you win sole custody, a court will usually grant the child’s father visitation rights, unless it determines that to do so would be injurious to the child.