Child custody: What is it? Do women get custody of a baby?

What is child custody? In America, do women get custody of a baby?

“Child custody” is defined in Black’s Law Dictionary (10th ed. 2014) as follows:

2. Family law. The care, control, and maintenance of a child awarded by a court to a responsible adult. • Custody involves legal custody (decision-making authority) and physical custody (caregiving authority), and an award of custody usu. grants both rights. In a divorce or separation proceeding between the parents, the court usu. awards custody to one of them, unless both are found to be unfit, in which case the court may award custody to a third party, typically a relative. In a case involving parental dereliction, such as abuse or neglect, the court may award custody to the state for placing the child in foster care if no responsible relative or family friend is willing and able to care for the child. — Also termed child custody; legal custody; managing conservatorship; parental functions.

In Utah (where I practice family law), you can kind of “reverse engineer” the definition of “child custody” as something like:

  • physical custody and legal custody, all powers and duties relating to caretaking authority and decision-making authority for a child. § 30-3-10.1(1)(a and b)
  • the rights, privileges, duties, and powers of a parent § 30-3-10.1(2)(a)
  • authority to make specific decisions § 30-3-10.1(2)(b)
  • with whom the child stays overnight § 30-3-10.1(3)(a)

Do women always get custody of children in divorce?

Always? No.

In fact, while in the past there was a preference for mothers being awarded custody of children (see the tender years doctrine) incidents of mother’s getting custody are falling in favor of either joint custody or even fathers being awarded custody, when the court finds that joint custody or custody to the father is what is truly best for the child (or as it is often phrased “in the best interest of the child”).

Frequently? Yes, especially when the child is a baby or a girl. Or if Mom is a stay at home parent, and Dad works a 40-hour or higher work week. The presumption that women get custody of kids is, however, falling out of favor as more and more legislatures and courts are starting to favor joint custody of children, where feasible.

Sometimes the decision to award custody to Mom really makes sense. Even though it may break Dad’s heart, even Dad would have to agree that sometimes Mom is simply better positioned or better qualified to exercise custody than he is.

In some instances, though, the decision to award custody to Mom simply reflects ignorant sexual discrimination. To ensure that the child custody award is as fair to parents and child alike, make sure that the court understands just how qualified you are to exercise sole or joint custody. Conclusively and overwhelmingly—if you can—disprove any false allegations of parental unfitness that your spouse may assert against you. Call out bad logic and prejudicial discriminatory court policies and practices for what they are early and often.

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

Tags: , , , , , ,
Click to listen highlighted text!