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The Divorce Encyclopedia
Maternal Preference


Term Definition Maternal Preference - the tendency of twentieth century courts to award children to the mother.
Application in Divorce Very often in divorce actions, divorced mothers end up alone in the marital home and custody of the children. This situation is a convergence of the extension of the doctrine of the best interest of the children, which holds that children should be disrupted as little as possible by a divorce, and the so-called maternal preference.

A woman who is a single parent managing home and child(ren) in this situation carries a very heavy load. Nevertheless, in most cases in a divorce involving unemancipated children, the mother will get custody unless she is egregiously incompetent.

Although the so called Tender Years Doctrine, which favored mothers as the custodial parent of children in the tender years, has become abolished by statute in some jurisdictions, courts still tend to award children to mothers.

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.

See Tender Years Preference.

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