Why does the mom usually win custody of her kids in a divorce?

Why does the mom usually win custody of her kids in a divorce?

Why are mother’s awarded child custody so often?

There is one main reason, and many ancillary reasons, so let’s review them:

Main reason: There is a misplaced belief that when couples divorce one of them must divorce his/her children too. It’s analogous to two business partners splitting up, and then arguing that the office cleaning staff they contract with must either clean one partner’s new office or the other partner’s new office, but not both. That’s silly.

If the cleaning staff liked both business partners and is, post-dissolution, willing to clean both of the former partners’ separate offices, let them. Everyone wins. Each former partner maintains the relationship with the cleaning staff and the staff gets the benefit of maintaining the relationships too.

Yes, it won’t be exactly the same as before, and there will be some disappointments and challenges along the way, but it need not be seen as a bad thing.

Ask any virtually any sane child of divorce, who:

  • is over the age of 40;
  • who had two fit, loving parents; and
  • who was limited by court order to contact with the other parent every other weekend and a few holidays,

whether he/she was happy with that arrangement (the answer is no), whether he/she wanted more time with the other parent (the answer is yes).

Don’t fight over child custody unless you honestly feel (and can prove, honestly) that your spouse is an unfit parent.

And here are a few ancillary reasons (in no particular order):

  1. The belief that women are better parents than are men. Not true. While it is true (even if politically incorrect) to that women are (and the science is confirming this again and again) generally the member of the couple more likely to want to give and to give personal care and attention to babies and young children, that does not make them betterparents than men, it makes them different parents than men. Children need and want the influence and interaction of both parents throughout their childhood. The “best parent” is both parents.
  2. The belief that the term “primary caregiver” is synonymous with “the parent who spend more time with the kids than the other.” Many states, including Utah, where I practice law, subscribe to the idea that custody of children in divorce should be awarded to the “primary caregiver” and then totally overlook the obvious fact that were it not for the other parent who works full-time 8 to 10 hours (or more) per day the “primary caregiver” could do what she (yes, she; let’s be realistic here) does. By no means do I disrespect stay-at-home mothers. My mother was one. And I benefited immensely from it. It is my professional opinion that where it’s financially feasible there should be a stay-at-home parent to rear children at least into their late teens. But that plainly does not mean that we treat the primary (or sole) breadwinners as nothing more than meal tickets. My father spent less time with me providing personal care and attention, but he worked his tail off to provide both his children and his wife with the necessities of life and to spare. That’s just as much “primary caregiving” as anything my mother did. Respect must be paid to the roles of both such parents. Again, different does not mean better or worse. “Complementary” is the correct term.
  3. Children need a “home base” with one parent. No, they don’t. Nor do kids who love both parents want that. Now clearly, if parents live too far apart to make joint physical custody practicable, or if they have work schedules that aren’t conducive to providing care for dependent children, then joint physical custody should not be awarded. But if divorced parents can live within walking or biking distance of each other, then that means their children will remain in the same neighborhood, in the same school district, near the same friends, same church, and same activities. Their “home base” is defined by these things, not by the question of at which parent’s house they spend more time. It’s not rocket science.

Sometimes reasons 1, 2, and/or 3 are valid points in certain divorce cases, but in the vast majority they are obsolete principles without merit; they don’t subserve the best interest of children. Courts cite them in lieu of a serious and attentive case-by-case analysis.

  1. (and this is something the courts will never admit, but it’s no less true in too many cases) Judges don’t want divorced parents to come back to court again and again fighting over child custody, so many of them (not all) view the child custody decision through the lens of “Which parent’s spirit is the easier to break?” and then award sole or primary physical and/or legal custody to the other parent (who is often easily identified as the squeaky wheel who will never stop until he/she gets what he/she wants). In this manner the court makes a bet that once the (now) noncustodial parent has gotten the message that that it can’t get any better for him/her, then the noncustodial parent will resign himself/herself to defeat and move on with life, Eeyore-style.
  2. Fundamental parental rights get short-shrift in divorce court. For all the high-minded U.S. Supreme Court and state high court opinions ostensibly declaring parental rights to be something that the state cannot infringe without a compelling state interest, somehow it just doesn’t seem to apply or get applied in divorce.

If a father wants joint custody because he loves his children and wants to be there all he can for his children and can be there for his children, he should (and he can—and it is getting easier) fight for it, for his kids’ sake and for his.

Utah Family Law, LC | | 801-466-9277

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