Why Are Mothers Granted Custody in Most Divorces?

by Wayne Thomas

Custody laws are in place to further the best interests of a child after divorce. Although these matters are no longer decided on the basis of a parent's gender alone, a mother still often receives sole custody. This is generally based on a deference afforded to the parent that is most involved in the child's day-to-day upbringing.

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Differentiating Custody

If a parent has a child living with her, that parent is said to have physical custody. This is not to be confused with legal custody, which refers to a parent's authority to make major decisions for the child, such as school choice and religious affiliation. While parents can share legal custody, this arrangement may not be possible if there is significant conflict between them. Courts may also order shared physical custody, but typically, one parent is given sole physical custody to minimize disruption of the child's life by having him live primarily with one parent.

Best Interests Standard

In determining which spouse is better suited to be the custodial parent, courts are required to further the best interests of the child. This requires the judge to consider factors determined by state law, such as the needs of the child and the parents, the home environment offered by each parent, and which parent is likely to foster a positive and continuing relationship with the other parent. The factors are written so as to avoid gender bias.

Primary Caregiver

Although custody factors are meant to be gender neutral, some of them are based on roles that continue to be primarily undertaken by mothers. Many states place great emphasis on the parent that is most involved in the day-to-day child rearing, such as preparing the children for school and other activities. This person is generally referred to as the primary caregiver -- and courts often find this person to be in a better position to further the best interest of the child.

Other Considerations

Although mothers are awarded sole custody more often than fathers, this does not necessarily mean that it will be the result in your case. The primary caregiver preference could also be used as a basis for a stay-at-home father to have sole custody. Alternatively, if both parents work full time, neither should be given the preference. Further, other factors may be deemed to outweigh a parent's ability to promote the best interests of her child. These might include a parent having a history of abuse or alcohol or drug dependence.