The Custodial Parent: Usually the Mother
The custodial parent is the parent a child normally lives with, and often the one who makes legal decisions concerning the child if she has sole legal custody. When parents dispute custody, usually the courts award it to the mother.
Sometimes called "the parent with physical custody" or "primary physical custody", the custodial parent does not own the child to the exclusion of the other parent, who is noncustodial.
Although courts seem receptive to awarding custody to the father in some cases, usually the mother receives children, particularly when they are very young. The established bias in favor of the mother -- called the Maternal Preference -- prevailed throughout most of the twentieth century. The Maternal Preference and the Tender Years Presumption, which assumes that children in the tender years are better off with their mothers, still influence the thinking of the judges.
Although the so called Tender Years Presumption has become abolished by statute in some jurisdictions, courts still tend to award children to mothers. The Tender Years Doctrine lost favor in the 1970s, when courts became more receptive to awarding men custody.
In most cases in a divorce involving un-emancipated children, the mother gets custody unless she is egregiously incompetent. The burden of proving incompetence falls to the husband. Very often in divorce, divorced mothers end up alone in the marital home with custody of the children. This situation is an application of the so-called Maternal Preference -- here meaning the children are better off with their mothers -- and an application of the best interest idea -- here meaning that it is in their best interest to be disrupted as little as possible by a divorce.
In awarding children to the mother, courts appear to be guided by various readings of theories of attachment that maintain that infants and small children should not spend time away from their primary caregiver or they may never be able to develop appropriate trust in another person. The application of this theory in custody disputes favors the mother.
The Maternal Preference is a complete reversal of nineteenth century practices when children of divorce were routinely awarded to the father, who was considered to be their owner.
Even when the noncustodial father makes good his child support payments, the financial strain on the custodial mother is often very great, and the single-parent families headed by a mother are often constantly on the edge of poverty. A woman who is a single parent managing home and children in this situation carries a very heavy load.
Common Questions and Answers:
Q. What should a custodial mother always remember?
A. She must remember that the custodial parent does not own the child to the exclusion of the other parent. She and her noncustodial husband must remember that a spouse who hurts the child’s other parent, hurts the child.
Q. What must both parents hold in mind?
A. Both parents should remember that a child’s main concern is his or her own future; that a child suffers terribly during a divorce, even when he or she does not show it; and that any custody arrangement competent and reasonable parents can reach is better than one a judge can decide.
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DIVORCED PARENTING -- In divorced parenting, both the custodial and noncustodial parent should remember one axiom: a former spouse who hurts the child’s other parent hurts the child.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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