Why Do Courts Award Custody to Mothers More Often Than Fathers?
They don’t —at least, not like they used to.
When I started my own law practice in 1991, I blazed a radical path by focusing on the rights of fathers. This occurred because one of my first clients happened to be a farmer who happened to be a father who happened to want custody of his 4-year-old daughter. And he happened to believe in me, despite my youth and obvious inexperience. (I suppose I was chosen less for his confidence in me than by my fee range that was commensurate with my experience, but I digress.)
We won that case, and he proceeded to raise his daughter happily. It certainly helped that the child’s mother was bipolar, had a recent suicide attempt, kept a dirty house, and had a sister who testified as to her lack of mothering skills. But even with all of those circumstances, it was still a long shot for a father to be awarded custody of a daughter, particularly at that young age.
After the case, he told his friends at the tractor store about me, and I then had several more fathers retain my legal services. My success rate was two out of three. Often, the mothers had baggage and the success of even a “clean” father in a contested custody case was unusual. The legal wins bolstered my reputation. At the time, I authored a published article about fatherhood and was informally designated a fathers’ rights attorney by the public.
I enjoyed playing the long-shot odds because it meant that I could be creative and try anything. I learned that some fathers would do whatever I recommended and others wouldn’t do anything if it was my idea. I learned how to screen father-clients for their willingness to take direction. I also learned that the success of a case largely depended upon its set-up at the very beginning. Custody planning became my mantra.
But no set-up was necessary for mothers. The prevailing sentiment was that, unless a mother came to court with a needle dangling in her arm, she would get custody of the children. The 1990s were also the dawning of public awareness of domestic violence and sexual abuse of children, neither of which helped fathers get custody.
Origins of the Maternal Advantage
The tender years doctrine — which dates back to the 19th century — states that children need their mothers more than their fathers. This doctrine assumed that children were better off with mothers because mothers are better nurturers and motherhood is the natural and necessary role for women. This was the law of the land until late into the 20th century. Fathers who changed diapers and got up with babies during the night were usually mocked. Widowed fathers were quickly scooped up in the singles’ market because it was assumed they couldn’t cope alone.
Eventually, the best interest test for children became the lodestar for child custody cases, but it was still assumed that the best interests of the children were to be placed into the sole custody of the mother. The Oscar-winning 1979 movie, Kramer v. Kramer, based on Avery Corman’s 1977 novel, was a landmark mainly because it presented the plight of a father who persevered — yet still lost out to a mother who returned after a long and voluntary hiatus from their son. He got to see his son every other weekend.
The Backlash
The changing role of women and the willingness of men to take on previously feminized tasks led to a backlash where mothers were challenged as the rightful and automatic custodians of children. Fathers started keeping diaries of the foods they fed their children, the activities they did, and how they handled tantrums. They learned to avoid situations where they could be falsely accused of abuse.
Much like women who demanded membership in unions, fathers demanded more than token parenting time orders with hefty child support burdens.
Mothers hated this challenge. They argued that fathers were getting a round of applause every time they gave a child a bottle, while they still did the bulk of child raising. Slowly, courts noticed that much depended upon the individual circumstances of the parents involved, and fathers began to be taken seriously in court.
Current Thinking
The public still believes that mothers enjoy an advantage in custody cases, but the actual advantage for mothers is minimal. The official law of the land in Ohio is that the genders are equal in custody matters. The only thing mothers can do that fathers cannot is breastfeed. One strategy is for the mother to prolong breastfeeding as long as possible. Most courts now recognize the long-term importance of fatherhood and the huge advantage if the father-child bond is nurtured from birth. Fathers who ask for an equal say in parenting are now generally winning.
Over time, fathers have lobbied well. The amount of child support orders is decreasing overall under new statutes that provide credits for additional parenting time. Almost all of the courts now have standard orders of parenting time that approach 40% to the non-custodial parent. The trend is for shared parenting to be the default position, with as near an equal division of parenting time as possible.
The Future
Of course, only time will tell, but the tender years doctrine is now something that most family law practitioners snicker at. The culture has changed so that the contributions of fathers are valued and respected. Now if a father truly steps up and does the dirty work of parenting,
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by Anne Harvey








