Do Courts Prefer Mothers Over Fathers?
It is a common perception in child custody cases. If you listen to your friends and family they will tell you mothers always win primary custody. This is a myth. Just to make sure you are reading this, let me type it again. It is a myth.
Who Started This Rumor?
It wasn’t always a myth. It did use to be true. The tradition of courts preferring mothers over fathers can be traced back to the Baby Boom generation. This was the first generation where divorce was acceptable. Back then, fathers were the breadwinners and mothers stayed home. Fathers went to work every day while the mothers tended to the children.
If there was a separation or divorce, there was never any doubt the mother would get custody. She was the one taking care of the children. A man would never seek custody of a child, he needed to earn money. During this era, fathers didn’t see themselves as a proper caretaker of children Even in situations where the mother died the father would send the children to relatives to be raised.
In the rare cases where a father requested custody the judge would rule in favor of the mom. Why? The judges were mostly men, and didn’t see child raising as a proper role for a father. The presiding judge would typically see the mother as better suited for this role. There was even a legal rule called the “tender years doctrine” which felt a newborn belonged with a mother for up to two years.
Times have changed. Mothers are now income earners. Fathers have become more involved in caring for children. Today’s judges have a different perspective on parenting roles. There are no longer custody laws giving women preferential custody rights. Judges today base custody decisions on the best interests of the children. Gender of the parent is no longer relevant.
He Feeds Them Cheetos
I think we can all agree mothers make, well better mothers. They are typically the parent who feeds, baths, and worries the most about the children. The fathers handle punishments, horseplay and eating Cheetos at 10 O’clock at night. This division of parenting is every mothers exhibit one in their case for primary custody. What judge would give custody to someone who let’s a child eat a whole bag of Cheetos?
Mothers feel the courts should base their final custody decision on how well a parent mothers. They feel the court should look at who takes them to soccer, who shops for them, who cooks for them, and who knows the name of their teachers. The court doesn’t.
The court is required by law to look at something called “Best Interest Factors”. Which includes very few mothering factors. It includes factors like; the wishes of the child if mature enough, the status of the current relationship between the child and parent, which parent will support visitation with the other parent, health of the parent, and the working hours of each parent. There are about 12 factors. None of these factors lean towards a mother or against a father.
Sole, Primary, Joint
Once we get past the “Best Interest Factors” we run into issues over the labels. Most clients are confused about what type of custody they should be fighting over. They think “Sole” custody is the same as “Primary” custody, or “Primary” custody limits dad’s visitation to their discretion, or “Primary Physical” custody is the same as “Primary Legal” custody. The worst is when clients want “Full” Custody. There is no custody definition in Nevada called “Full”.
You have two types of custody; physical and legal. Then you have joint, primary and sole for each type. Joint physical is 50%, primary physical is 60% or greater, and sole physical is 99%. Joint is the default, primary you need to prove, and sole is almost impossible.
If you are fighting for “Full” custody because he feeds them Cheetos, it may be time to rethink your strategy with a good divorce lawyer.