How Often Do Mothers Get Full Custody of Their Children After Divorce?

Always? No.

Frequently? Yes.

Usually. Yes.

Whether they deserve it or not? Usually, yes.

Are mothers awarded custody of children as much as they used to be a generation or two ago? No?

So, what’s going on?

Volumes have been written on the subject of how custody of children should be awarded to divorced or separated/unmarried parents, but to summarize the history of how that question has been resolved:

There was a time when fathers were awarded custody of children back when men controlled all the property and wealth and when men were either more self-sufficient than women or were paid far more than women. The idea then was essentially an economic one: award custody to the parent who was in the better position to support the children financially.

Then the pendulum swung the other way with the “tender years doctrine,” defined in Black’s Law Dictionary as follows:

Black’s Law Dictionary (11th ed. 2019), tender-years doctrine

tender-years doctrine (1954) Family law. The doctrine holding that custody of very young children (usu. five years of age and younger) should generally be awarded to the mother in a divorce unless she is found to be unfit. • This doctrine has been rejected in most states and replaced by a presumption of joint custody. See MATERNAL-PREFERENCE DOCTRINE; PRIMARY-CAREGIVER DOCTRINE.

You’ll note that in the Black’s Law Dictionary definition quoted above that it states, “[The tender-years doctrine] has been rejected in most states and replaced [nowadays] by a presumption of joint custody.” That’s not entirely true.

While the trend is moving toward a presumption that, where practicable, parents should exercise joint physical custody of children don’t be fooled into believing this trend is sweeping the nation like wildfire. The pace is slower than that. The trend is undeniable, but some jurisdictions have been quicker to adopt the joint physical custody presumption than others. Some jurisdictions are more resistant to adopting the presumption than others. Even in jurisdictions that claim to adopt a presumption of joint custody, the actual practice in the courts is often starkly at odds with law on books.

This means that while it is truly easier than it’s been in more than a hundred years for fathers to obtain an award of joint custody of their children, it’s by no means guaranteed. The tender-years/maternal-preference doctrine is deeply entrenched in the culture, as is the belief that men as naturally inferior parents. Fit, loving, devoted fathers who want to be there for their children as much as possible still generally (generally, not in all cases) have a very difficult time persuading courts that joint custody is not only in the best interest of the children but in the best interests of the family members collectively. If you are a father hoping to be awarded joint custody of your children, be prepared to fight ten times harder for it that you imagine. I mean it. No, really, I’m not exaggerating. I mean it. Forewarned is forearmed.

Utah Family Law, LC | | 801-466-9277

Eric Johnson’s answer to How often do mothers get full custody of their children after divorce? – Quora

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