Do Mothers Have an Advantage in Custody Disputes?

 

If you are going through a divorce, a primary concern is often your children and your child custody arrangements. It’s difficult for any parent to contemplate not having their children living with them all of the time, but it can be even more difficult for mothers who have a close bond with their children.

If you and your husband cannot come to custody terms that you both can sign off on, the court will need to decide the matter for you. While many people think that mothers have a natural advantage in such disputes, the truth is far more complicated. Understanding the basics related to child custody can help you navigate the process while standing up for your own parental rights.

Legal Custody

Custody is divided into two major concerns that include physical custody (related to with whom the children reside at any given time) and legal custody. It’s important to recognize that in the vast majority of divorces, both parents share legal custody, which refers to a parent’s rights to make important decisions on behalf of their children. These decisions include:

• Matters related to your children’s health and well-being, such as medical care
• Matters related to your children’s education
• Matters related to your children’s religious upbringing

These are fundamental issues that shape your children’s lives, and it’s very likely that you and your divorced spouse will continue to make these important decisions together, although one parent is sometimes given tie-breaking authority.

Physical Custody

Physical custody relates to with whom your children reside primarily and to their visitation schedule with the other parent. While many people believe that mothers have an advantage when it comes to physical custody, this really isn’t an accurate assessment in many cases.

Do Mothers Have an Advantage in Custody Disputes?

The Court’s Stance

If you and your divorcing spouse cannot come to mutually acceptable terms regarding your children’s custody arrangements, the court will intervene and make a determination of how you will split custody rights.

The court will always favor what is in the best interest of your children, but this is obviously open to interpretation, and it’s important to remember that the court has considerable discretion in the matter. You obviously know your children in a way that the judge never can, and you know what’s best for them.

Courts often favor the status quo when making child custody decisions. In other words, if the mother has been the primary caregiver and she and the children are living in the family home while the case is pending, the judge may be hesitant to upset the balance and may be more inclined to award the mother primary custody.

This is generally more a function of how things are commonly arranged than it is a function of favoring the mother or of the mother having an advantage in the matter.

The Considerations at Hand

In determining child custody arrangements, the court is guided by the children’s best interests, but in the process, it takes a wide range of variables into consideration, including:

• The emotional connections between each parent and the children
• Each parent’s ability to provide the children with a loving home and a healthy life
• Any criminal history
• Any history of domestic abuse – either physical, emotional, or sexual
• Any substance abuse issues
• Any pertinent parental considerations that could affect the decision, such as age or disability
• The location of each parent’s residence (who lives closer to the children’s school, for example)

None of these issues are gender-specific and, as such, the court’s decision cannot favor the mother. Many mothers, however, are already providing primary custodial care, and courts are not fond of dramatically disrupting children’s lives when they’re already going through the emotional challenge of divorce. After all, divorce is hard on everyone, but children are especially vulnerable.

Your Children’s Voices

Many parents wonder if their children’s preferences will guide – or should guide – the court’s custody decisions. The fact is that many judges will speak to your children privately (especially older children) and will take their preferences into careful consideration, but the decision is simply not up to your children.

The court is making determinations related to your children’s custody exactly because they are children who need custodial care. When your children are adults, they’ll make their own important decisions, but for now, those decisions must be made for them. Your children’s voices, nevertheless, may help guide the court’s ruling.

Reaching a Resolution

If you’re going through a divorce, emotions are inevitably running high. The stress and heartache of divorce leave many couples unable to reach mutually agreeable terms on many important issues. Both of you, however, naturally put your children first, and if you can find a way to hammer out custody arrangements that you can both live with, the court and its considerable discretion won’t need to be involved in the process.

Reaching a compromise with your children’s father can come in many forms. If you aren’t able to work together personally (which isn’t uncommon), your attorneys can attempt to negotiate an arrangement, and you can also address the issue via mediation – with the legal guidance of your respective divorce attorneys.