Do Courts Prefer Mothers Over Fathers?
It is a common misconception that family law courts prefer mothers in custody battles. People will tell you that mothers always win primary custody. (Unless you are talking to a divorce lawyer.)
A divorce lawyer will tell you that was probably true for your grandparent’s generation. Possibly true for your parents’ generation, depending on the state.
But wait. You know this couple who got divorced, and the mother won primary child custody. Isn’t that evidence of prejudice against fathers?
Family law courts base their decisions on the best interests of the child. If joint custody is off the table, they look for the parent who will make sure the child gets the best preparation possible for their adult life. There is also a good chance that your friends weren’t telling you everything that goes on in the privacy of their home.
After all, it’s easier to blame gender biases than to admit that maybe the mother, in that case, would be more willing to work with the ex-spouse on visitation schedules.
The idea that courts prefer mothers wasn’t always a myth. It did use to be true. When divorce began to be socially acceptable in the Baby Boomer generation, gender roles were different. Parenting was the mother’s job.
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.
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.” It said that a newborn belonged with a mother for up to two years.
Times have changed. Mothers are now also income earners. Fathers take on more of the child-rearing duties.
Today’s judges have changed with the times. They have different perspectives on parenting roles than their predecessors.
Laws giving women preferential custody rights no longer exist. Judges have guidelines used to determine what is in the best interest of the children. The gender of the parent plays no part in their decision.
Today’s “knowledge” that courts prefer mothers stems from past generations and media sensationalism.
Every parenting dynamic is different. Many households divide parenting duties along similar lines to what our grandparents did.
Conversely, we also see a rise in stay-at-home dads and Soccer Dads.
Societal opinions still haven’t quite caught up to the changes. People fine it cute when Dad brings his little girl to school with cereal in her hair and mismatched socks. If Mom does that, people assume she is a closet alcoholic or worse.
Mothers will often complain about things like this to the court. They do the meal prep, and the father just hands them a bag of Cheetos at 10 o’clock at night if they’re hungry. What sort of judge would give custody to someone who lets a child eat a whole bag of Cheetos?
Many 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 music lessons, who shops for them, who cooks for them, and who knows the name of their teachers. The court is not interested in who is the best mother.
Nevada law requires the court to look at “Best Interest Factors.” These include very few mothering factors.
There are 12 Best Interest Factors outlined in Chapter 445, AB 263, Section 8 of the Statutes of Nevada.
These factors are:
- The wishes of the child if the child is of sufficient age and capacity to form an intelligent preference as to his or her physical custody.
- Any nomination of a guardian for the child by a parent
- Which parent is more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent.
- The level of conflict between the parents.
- The ability of the parents to cooperate to meet the needs of the child
- The mental and physical health of the parents.
- The physical, developmental and emotional needs of the child.
- The nature of the relationship of the child with each parent.
- The ability of the child to maintain a relationship with any sibling
- Any history of parental abuse or neglect of the child or a sibling of the child
- Whether either parent or any other person seeking physical custody has engaged in an act of domestic violence against the child, a parent of the child or any other person residing with the child.
- Whether either parent or any other person seeking physical custody has committed any act of abduction against the child or any other child.
- None of these factors lean toward either mother or father.
The Nevada courts prefer joint custody whenever possible. Even the guidelines for primary custody focus on the child maintaining a healthy relationship with both parents.
Section 8, Point 2 of the same part of the Statutes says,
“Preference must not be given to either parent for the sole reason that the parent is the mother or father of the child.”
Once we get past the “Best Interest Factors” there is confusion over 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.”
They think “Sole” custody is the same as “Primary” custody or “Primary” custody limits dad’s visitation to their discretion. People assume “Primary Physical” custody is the same as “Primary Legal” custody. The worst is when clients want “Full” Custody. There is no “Full” custody definition in Nevada.
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 custody 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.