QUESTION: From a lawyer’s perspective, why do women get child custody almost 90% of the time? Is there really a bias? What factors come into play when deciding about it?
ANSWER: I am not divorced, and I never have been divorced. But I have practiced divorce law for 21 years. Nobody can definitively “know” why women are awarded primary or sole physical custody of children in divorce—each case is different from the others—but I feel I can give an educated, honest opinion (even if it is politically incorrect), given my experience and my knowledge of the subject Here are a few that come to mind:
- In our culture we believe women are superior parents. This is, frankly, generally true for infants and very young children, if for no other reason than men cannot nurse and the “maternal instinct” is a real thing. The problem with the application of these facts in divorce are manifold, including a) just because women are generally good/better parents does not mean that the court can or should presume that the mother is the superior parent in each divorce case; b) if parental fitness is not the reason for divorce (and it rarely is), the idea that a man who, but for getting divorced, already shares the rights and privileges of child custody co-equally with his wife should have to “prove” his parental fitness artificially introduces into divorce an issue that need not exist.
- If a woman has been the “primary caregiver” of the children previous to divorce, then many argue that the woman should be awarded primary or sole custody of the children post-divorce, even if at the time of divorce the wife is no longer a stay at home mom and/or the children are old enough that they don’t need round the clock care and supervision. This is on its face an unsound argument. This argument weakens every day as more women work outside the home, more men become primary caregivers and/or work from home, etc. Eventually, the “women are primarily primary caregivers” will become obsolete.
- Men are better able to “bounce back” financially from divorce than women (this is true generally), so some judges feel that by awarding primary or sole custody of the children to the mother then the mother can receive child support and get a financial boost from child support and/or child support and alimony that that father is ordered to pay to her. Like the primary caregiver argument, the “men make more money than women” argument weakens every day as more women work outside the home and gain income parity with men (if they don’t have it already). Eventually, the “men are richer than women” argument will become obsolete.
- Many people believe that children “need a home base” and that joint custody consisting of children spending half of their time in Mom’s care and half in Dad’s care would be “unstable.” Well, sure, if Mom and Dad lived 50 miles apart, then joint custody would be more trouble than it’s worth for most parents. But the idea that children would “do better” living primarily with Mom and having “visits” with loving Dad is somehow a superior way to treat children, just ask the children in sole custody situations how they felt about it. They hated it. They missed Dad and wondered why their time with him was so limited.
- Judges generally hate the divorce cases. In my opinion, based upon 23 years of observation, sometimes judges take steps to ensure that the divorce case does not keep coming back before them on matters of enforcement or modification. So what steps would one take to ensure that the divorce case does not keep coming back before them on matters of enforcement or modification? Break the spirit of at least one parent. And generally (generally, not always) whose spirit is the easiest to break? The father’s. A) he knows he’s already at a disadvantage in the child custody fight; and B) he knows that the court tends to favor the mother; and C) courts know (again, I know this is politically incorrect, but it’s reality) that mothers are feistier and more combative than fathers, so if judge’s pander to the mothers, they will be less likely to stir up trouble in the future.
Remember: I do not claim that all or even some of these factors always rear their ugly head in every divorce case. I do not claim that all judges think this way. But I do assert unequivocally that these are factors that are common in divorce cases generally, and to deny them to avoid appearing “unenlightened” would be to place acceptance over truth.
Utah Family Law, LC | divorceutah.com | 801-466-9277