Are Mothers More Likely to Get Child Custody During Divorce?

Rohom Khonsari September 15, 2022

Children are the most important—and often the most contentious—consideration in a divorce. Fortunately, Florida law seeks to protect the interests of children at every stage of the proceedings.

Previously, this protection included giving default custody to the mother during a divorce in most cases. However, this policy has changed in recent years, making a child custody lawyer a valuable asset for parents contemplating divorce.

Ending the Tender Years Doctrine

For many years, judges around the country made decisions based on the so-called tender years doctrine. This principle holds that young children are better off with their mother, who is generally seen as more nurturing.

Other assumptions and stereotypes also accompanied the tender years doctrine, such as the portrait of the male as the sole breadwinner and thus the one most likely to be responsible for alimony and child support.

Family law attorneys working during the heyday of the tender years doctrine could expect custody to be awarded to the mother in roughly 90 percent of cases.

The times no longer reflect these historical assumptions.

These days, women make up almost as much of the workforce as men—often more, in specific sectors. And studies estimate the number of stay-at-home dads in the country exceed 1 million. It would make little sense to blindly give the mother sole custody in light of these statistics.

Factors Determining Custody

Past family court decisions in Florida and many other states routinely placed children in the mother’s custody rather than the father’s. However, the sex of the parent is no longer taken into account during divorce custody proceedings. Instead, the court considers several factors that help it determine an appropriate outcome.

Guiding the judge is the belief that children do best when both parents have a hand in their rearing. Even so, there are circumstances in which the judge may decide that granting sole custody to the mother is in the child’s best interests, like when the mother’s family law lawyer presents damaging evidence against the father.

According to various studies, children who grow up in households with only one parent tend to do worse than their peers in many ways, including academically and financially. Co-parenting, which sees both parents equally involved in a child’s life, seeks to offset the effects of one parent being absent from the home.

Some of the factors judges consider when determining custody include:

• Each parent’s willingness and capacity to play a role in the child’s life
• Each parent’s willingness to honor the terms of the parenting plan
• The proposed division of parental responsibilities
• The geographic reasonability of the plan
• The moral fitness of each parent
• The child’s record in the community and at school
• The ability of each parent to provide discipline and authority
• Incidents of domestic or sexual violence, child abuse, neglect, or abandonment

The court is looking for a general sense of each parent’s suitability to be a part of their child’s life. To this end, moral fitness is one consideration that holds more weight than many other factors.

Moral Fitness

Moral fitness refers to a person’s character and integrity. Judges are especially interested in this quality because children tend to mimic and adopt behaviors displayed by their parents. Granting custody to an immoral parent increases the odds that the child will follow in their footsteps.

Various types of behaviors qualify as immoral in the context of family law, including:

• The use or possession of illegal drugs in the home
• Alcohol abuse
• Domestic violence
• Child abuse, neglect, or abandonment
• Failure to provide medical care
• Failure to provide basic needs, such as food, water, and adequate shelter
• Sexual abuse

Parenting plans and custody agreements are frequently altered due to moral fitness concerns, both alleged and verified. You should contact a family law attorney if you think you might be on the losing end of a child custody ruling because of a moral fitness issue.

Allegations from the other custodial parent could result in losing valuable time with your child. An experienced family law lawyer may be able to mitigate the impact of such claims.

Practical Realities

Certain practical realities make it more likely for a mother to be awarded custody. For example, if the father plans to leave the state or the area, a judge may find the move disruptive to the child’s educational and community interactions.

Additionally, a father who does not have the resources to house a child will likely not gain custody over a mother who does.

Preference of the Child

A judge also may consider the preference of a child when deciding custody. However, any practicing family law lawyer will tell you that it’s never the sole determining factor for these decisions. Nor is it always accorded much weight, even when the child reaches an appropriate level of maturity.

Compared to many other factors listed in the statute governing children and divorce, preference is low on the list of considerations.

Co-Parenting vs. Custody

Florida law has abandoned most uses of the term “child custody” in its family law statutes. Courts now focus on co-parenting, with the time-sharing schedule being an essential tool for dividing children’s time between parents.

Co-parents can implement various scheduling arrangements as long as a judge approves.

Some of the standard agreements a family law lawyer may be asked to help facilitate include:

• One week at a time at each parent’s place of residence
• Two-week blocks of time with each parent
• 3-4-4-3, or three or four days with each parent, alternating each week
• 2-2-5-5, or two days with each parent followed by five days with each parent

As you can see, these plans seek to ensure that the child not only sees both parents but also has an opportunity to live with them. Such arrangements counteract the adverse effects associated with single-parent households.

If you are dealing with issues related to child custody, contact an experienced child custody lawyer for help.