Are mothers being treated “worse” by the legal system these days, with more and more states leaning toward awarding joint custody to fathers more and more?

No, mothers are not being treated “worse” by the legal system these days, with more and more states leaning toward awarding joint custody to fathers more.

Mothers do not have an inherent or presumptive right to be awarded the sole or even the primary custody of their children. This idea is known (was known) as the “tender years doctrine,” which has been determined to be sexually discriminatory in most jurisdictions in the U.S.A. (perhaps all jurisdictions, I don’t know for certain).

It is undeniable that fathers today are generally being treated more fairly in the child custody award analysis, and that trend appears to continue, but as a general matter fathers are still presumed to be second class parents and discriminated against accordingly.

To be sure, there are children whose best interests are ignored in favor of the court indulging personal and cultural biases. And this mistreatment sometimes includes (but is not limited to) when the child custody award is made. I cannot deny that there are mothers and fathers who are mistreated by the legal system, but it is my experience and opinion that–with the exception of a current large but slowly decreasing number of jurisdictions–for every mother who are cheated by the system, there are dozens of fathers who suffer the same unfair fate.

Some people believe that their lawyers “know” that their clients “obviously” want sole custody of their children when a child custody battle arises. Not true. Tell your lawyer what kind of custody arrangements you want and why. Your lawyer, if he/she is a good lawyer, will evaluate the strengths and weaknesses of your position and tell you whether he/she believes you can get what you want or whether you’re setting your sights too high or even too low.

Some people believe that if both parents have no history of spousal or child abuse that the court will “automatically” award the parents 50/50 legal and physical custody of their children. Not true. Not even usually true.

Some people believe that unless you or the other parent wants to fight over child custody, that the court will award the parents joint equal legal and physical custody of their children. That is not true of all jurisdictions. In my estimation, most jurisdictions do not presume that joint equal legal and/or physical custody is best for children, and even in those jurisdictions that do have such a presumption, if one of the parents objects to such a presumptive custody award, the court will hold hearings and/or a trial to determine whether the presumption has been rebutted.

At the time I write this, I’ve been practicing divorce and family law for 24 years, and it’s simply a fact that while it is getting easier for men to get a fair shake in the child custody fight, in most jurisdictions it is easier for a mother to win primary physical custody of the children than it is for a father to win primary physical custody of the children or even joint equal physical custody of the children.

In my experience as a divorce and family lawyer in Utah, most courts never even give a father seeking merely joint equal physical custody so much as a losing chance to prove he can exercise joint equal custody in the children’s best interest. Such courts just presume that for whatever reason(s)—real or imagined—the father can’t hack it, and then they make their child custody awards accordingly.

Some courts subconsciously discriminate, not even realizing what they are doing, just taking for granted that “children belong with their mother” and “children don’t need more than a few weekends and holidays and a few hours each week with their dads” and/or “dads don’t really want their kids to be reared equally by both parents”. Courts that deliberately discriminate will selectively cite to the facts and/or fabricate facts to support their foregone custody award conclusions. I’ve witnessed these scenarios personally time and again as a lawyer. And I represent both men and women. I don’t have a personal stake in my observations. I’d like nothing more than to say, “The system doesn’t discriminate against fathers anymore,” but at this point in my career, I cannot honestly say so.

Utah Family Law, LC | | 801-466-9277

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