A question we get quite often is, “Why does it seem like the courts tend to favor mother’s in custody cases?” While there isn’t an easy straightforward answer to that, there is a history lesson behind it that can help explain it.
Surprisingly, it wasn’t until the mid-1800s or so that mothers started getting the children primarily in divorces. Up until then, the courts almost always granted full custody to the fathers! Remember, the 1800’s were a much different time, women didn’t have many rights and children were basically seen as property of the father. It wasn’t until an early feminist, Caroline Norton, was able to successfully petition the UK Parliament to pass what became known as the “Tender Years Doctrine”, which switched the status quo around and began to presumptively give custody to the mother instead. That law eventually made its way to the United States, where it was primarily used until the late 20th century.
The Tender Years Doctrine was eventually challenged throughout the 20th Century, and by the end of it, a major majority of the States had abolished it and replaced it with the supposedly gender-neutral “Best Interest of the Child” approach. Best Interest is an analysis that looks at multiple factors, with the primary focus being what is best for the child in any legal proceeding. Every state has varying elements, but in most cases, including Florida, the courts look at a list of factors to help determine which parent is going to receive primary physical and legal custody. Common elements of consideration are:
- Any history of mental illness, physical abuse or neglect by either parent, or substance abuse
- Continuation of a stable living environment for the child. Home location, extended family, schooling, and more are considered
- The wishes of the child, as long as the child is old enough to properly express them
- Special needs of the child
- The child’s primary caregiver
- Each parent’s relative situation and how able they are to provide childcare, including a proper home/life balance.
The last two points are the most important because they’re the ones that tend to favor mothers in custody arrangements. While we’re in the middle of a cultural and economic shift that sees more women and mothers entering the workplace (the amount of dual income households has increased from 25% in 1960 to 60% as of 2012, according to a Pew Research analysis), in many cases, the mother still ends up being the primary caregiver, and the father is the one who works a majority of the time. This contributes in the mother’s favor when reviewing continuation of a stable living environment. Additionally, it was found in a 2011 Pew study that in most two-income households, mothers still spend approximately twice the time fathers do performing childcare duties.
The above points in the “Best Interest of the Child” approach is supposed to be evaluated equally and taken together, but we still see courts often awarding primary custody to the mother, since she’s normally the one who spends the most time at home with the child.
It’s important to take a moment at this point and understand that this approach is only used in approximately 4% of Florida custody cases. Parents decide in a majority of custody arrangements (upwards of 75%) who gets primary, joint, or sole custody. The courts will review what has been decided and sign off on it, so long as it’s reasonable. It’s very common to see in these situations that the couples themselves choose to give primary custody to the mother. However, we’ve also seen that when fathers ask for custody and are actively advocating for it. Florida divorce courts will award them sole or join custody at least half of the time.
In closing, it’s important to remember that your children are not property. Your children are living, breathing human beings, and your first thoughts when deciding how custody should be set up is what’s in the best interest of the child. Additionally, when fathers are involved in the proceedings and show a willingness to handle their part of custody, the courts are much more likely to award a favorable custody decision to them.