How many states favor mothers in child custody proceedings?

How many states favor giving the child to its mother in a custody hearing?

You’re asking a good question, but it’s not the question you think you’re asking.

The question is not whether a particular “state” favors awarding custody of children to mothers over fathers, but whether particular judges favor awarding custody of children to mothers over fathers.

First, we need to understand a few things about the way the law governing the award of child custody has evolved.

I am not aware of any state in the United States with a law that expressly discriminates against men for child custody purposes; if any such law existed, it would likely be challenged and easily struck down as sexually discriminatory and thus unconstitutional. There may still be a few states with laws on the books that surreptitiously favor mothers over fathers. By employing language and stating tests and elements that favor to women and mothers over men and fathers without overt references to men or women, such laws still manage to discriminate in favor of mothers over fathers without appearing to be indulging in blatant sexual discrimination. A good example of this in my jurisdiction (Utah) is favoring the “primary caregiver” of the child. Many judges simply presume that a child’s primary caregiver is its mother, particularly when the child is an infant or very young, even if there is insufficient evidence or even no evidence to support such a presumption.

And that’s a good segue into the next topic of this discussion. When it comes to child custody, laws are usually not your biggest impediment to a fair child custody award. While it is true that in the past there were child custody laws that were blatantly and grossly discriminatory against men and fathers, those laws are disappearing fast (thank goodness). Now the problem lies primarily not in the law but in those who administer the law: the judges.

Many of the current/outgoing generation of judges came from nuclear families (i.e., a family consisting of a married mother and father of their children) in which the mother seldom worked outside the home, if at all. In families like these, it was clear that the mother usually did, in the majority of divorce cases involving such families, the majority of the child care taking. Reasonable arguments could be made in these circumstances for why the mother would be awarded primary physical custody of the couple’s children. Many of these judges have so many cultural biases in favor of awarding custody of children to mothers that they are incapable of even conceiving of the idea of a father being awarded primary custody or even having both parents share physical custody of their children equally. Not all of the current generation of judges are this way, but many are.

But the new/incoming generation of judges are as likely to be children of divorce as to have come from a traditional nuclear family, and many of the current generation of judges also have children who have divorced. These judges remember how awful it felt to be limited to time with their fathers on alternating weekends and holidays. These judges see their own adult divorce children no longer treated as co-equal parents and instead being marginalized as “visitors” of their own children. Many of these judges are far more sympathetic to men and fathers than the previous generation of judges are and have been. Not all of the new generation of judges are this way, but many are, and their ranks are growing.

So if you have a judge who is over the age of 60 years, and you are a fit and loving father who wants to be as involved in your children’s lives as you want their mother to be, odds are you have an uphill battle before you. If it becomes clear that your judge is culturally biased and/or discriminates on the basis of sex, you need to expose this on the record, and you need to acquire and present so much evidence showing your parental fitness and that the best interest of the children benefit from joint custody that it leaves the judge no other rational, justifiable choice but to award you (and the kids) joint custody. It can be done, but it’s extraordinarily difficult these days, so be prepared to work very hard (yes, even unfairly hard) for it.

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

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