Fact check: US states that give the mother preference in custody

January 24, 2019 3:31 AM

Asking for myself and anyone else who keeps seeing Internet dudes citing the fact that mothers are sometimes (often?) given precedence in custody cases. Since I never see a number of states or more specificity associated with these claims, I wonder if it’s more complicated than a simple checklist. I have a few more specific questions as well:

1) Do states prefer the mother as a matter of law? What kind of law? I.e. legislation, case law, etc. 2) Are people who cite this considering a preference for the primary caregiver the same as a preference for the mother? 3) Does the situation differ a great deal for married vs. unmarried people? I usually see this cited in a divorce context.

Apologies if my question shows a total misunderstanding of...things.

posted by chesty_a_arthur to Law & Government (12 answers total)

This article draws conclusions from this Pew research, which you should read.
posted by DarlingBri at 3:50 AM on January 24, 2019 [2 favorites]

Parties who focus on something like gender tend to convince the court that they are not capable of protecting the child's best interest.

determinations are generally made after considering a number of factors related to the child's circumstances and the parent or caregiver's circumstances and capacity to parent, with the child's ultimate safety and happiness being the paramount concern.

The apparent preference for mothers is related to who is the typical primary caretaker of the child, but it does not guarantee that sole custody will be awarded to the mother. Parties who refuse to understand that the only thing that matters to the court is the best interest of the children tend to "cite the fact mothers are sometimes (often?) given precedence in custody cases," among other failures to hold themselves accountable, and this can sometimes also be used as support for restraining/protection order cases, especially if they say this in court, because it can look sexist, irrational, and hostile, which may help support a finding of a risk of harm.
posted by Little Dawn at 5:56 AM on January 24, 2019 [1 favorite]

Response by poster: I'm sorry, I missed a word in my question that seems to be important. Do any states prefer the mother as a matter of law?

I have a decent sense of the overall picture, I'm wondering whether different states have actual different laws.
posted by chesty_a_arthur at 6:14 AM on January 24, 2019

Best answer: The relevant wikipedia article has a citation on this publication in a Princeton journal which says:

Since the 1970s, there has been an emergence of divorced-father families. Divorced-father families are increasing at a faster rate than divorced-mother families. This phenomenon occurred with the changes in custody laws during the 1970s which made them more gender neutral. Custody (legal and/or physical) would not be automatically given to the mother, but could also be given to the father. Changes in custody laws have had a major influence in the living arrangements of the children of divorce. During the 1940s and 1950s, of all children in the United States only one or two children per 1,000 lived with their fathers after a divorce.
With the changes in child custody laws, there has been a tenfold increase in children living with their fathers after divorce; in 1988, 1.3% (838,000) of children lived with their father after divorce. In contrast, 7.8% (5,031,000) lived with their mother.

posted by JonB at 6:14 AM on January 24, 2019 [4 favorites]

Best answer: 1. There used to be legal preference to give the mother custody of young children, but this is now at most only a tie-breaker when both parents seek custody of a young child.

2. There are a few interacting factors. Women do tend to be the more involved parent, and many fathers do not seek custody because they agree that the mother is better for the child or, sometimes, because they presume that they will not be awarded custody. However, there is a clear gender bias: A 2009 survey of 149 judges in Alabama, Louisiana, Mississippi, and Tennessee "exhibited continuing indications of maternal preference...with the means on every item of the questionnaire indicating a greater preference toward mothers than fathers."

3. Sorry, I don't understand this question. Could you give an example of when a couple not divorcing would sue each other for custody?
posted by meaty shoe puppet at 6:18 AM on January 24, 2019 [4 favorites]

There is a clear and legal preference for the mother, in some states, in the case of unmarried parents.
posted by lakersfan1222 at 6:25 AM on January 24, 2019 [2 favorites]

Best answer: Do any states prefer the mother as a matter of law?

The second link in my comment above is to Womenslaw.org, which includes links to laws for all of the states. My hunch is that it is not possible under the U.S. Consititution to use gender as a factor in custody determinations, but I have not reviewed all of the state laws. These days, the trend appears to be moving towards a presumption of joint custody, but YMMV by jurisdiction and the specific circumstances of the case.

Could you give an example of when a couple not divorcing would sue each other for custody?

Unmarried parents won't have an underlying divorce action but can have a custody case, and legal separations may be available for married parents who do not want to live together but want to remain married for any number of reasons.
posted by Little Dawn at 6:27 AM on January 24, 2019 [2 favorites]

Oh, sorry, (3) is totally clear. I just can't read.
posted by meaty shoe puppet at 6:28 AM on January 24, 2019 [2 favorites]

Best answer: This law review article may be helpful:

With the elimination of the presumption in favor of the mother, courts are left with "the best interest of the child" as the sole criterion in contested child custody cases.

Donald C. Schiller, Child Custody: Evolution of Current Criteria, 26 DePaul L. Rev. 241 (1977)
Available at: https://via.library.depaul.edu/law-review/vol26/iss2/3
posted by Little Dawn at 6:38 AM on January 24, 2019 [1 favorite]

Best answer: I don't have time to look up the stats just now, but it seems that most of the appearance that women are still informally given preference is based on women's greater tendency to seek physical custody in the first place. I.e., you can't be awarded it if you don't ask for it.
posted by praemunire at 8:08 AM on January 24, 2019 [4 favorites]

Best answer: There is no state in the union currently where mothers are given explicit legal preference. However, the current “best interests of the child” does on average favor the mothers, because of the following factors:

1) Both parents being equal, it is generally in the best interests of a nursing child to be placed with the person that provides the breast milk.

2) “Best interests of the child” considers the boring factors more than the splashy ones. Who drives the kid to school? Who cooks dinner? Who helps with homework? Who lays out clothes? These are, because of sexism, most often tasks relegated to women even if the women are working - see “second shift” articles.

So you’ll often have men who are like “but I have a great relationship, the kids like me, and I’m morally a better person than my ex wife, why did she get custody? I know how to cook dinner and change diapers too!” But the answer is: “your wife changed 90% of the diapers and you changed 10%, the courts are not confident you will reliably do this in future and doesn’t give a fuck which of you is morally right in the divorce cause.”

So really if they want to increase fathers getting custody, the actual answer is to get fathers to take on more domestic chores.
posted by corb at 8:33 AM on January 24, 2019 [28 favorites]

Mod note: Folks, let's keep this focused on actual citations and documentation, not so much personal anecdotal gut takes.
posted by cortex (staff) at 4:11 PM on January 24, 2019 [1 favorite]