Why Mothers Can Lose Custody

Statistics show that many fathers have a 50-50 chance of being award custody of their children in a divorce case.

Custody laws are supposed to be gender neutral and many courts a living up to the rules, and this means that when the facts of a given case are presented in the courtroom, a judge may determine that it is in the best interests of the child to live primarily with the father, not the mother. The court must remain focused on what is best for the children and all options are on the table.

In custody situations, more and more courts now favor equal consideration of both mother and father as the custodial parent.  This was not always the case. In decades past, it was a rebuttable presumption that mothers were the preferable custodial parent as they tended to be the primary caregivers. Yet even now, most times courts award physical custody to the mother even where legal custody is given equally to both parents. Legal custody simply means that both parents have input into the major issues surrounding their children including issues of school, medical care and religious upbringing.

Despite the lingering preference given to mothers, it is not uncommon for mothers to lose custody of their children. All states adhere to a standard of the best interest of the child. If a court determines that a mother’s custody impedes with this standard, custody may be taken away.

A mother can lose custody because of a history of drug or alcohol abuse; obstruction of visitation between the non-custodial father and the children of the marriage; disparagement of their father in front of the children (parental alienation); abandonment of the children and the home; and abuse that threatens the children; and involvement in an abusive relationship.

Once a mother loses custody, she may find it difficult to even gain visitation rights. In cases of custody lost due to alcohol or drug abuse, the mother must prove she has completed a treatment program before she can request a return of custody rights. At minimum, she may be granted supervised visitation until the judge determines that she is no longer a detriment to her children.

Professional women, whose marriages have failed, have had to leave their children and the family home. In each of these situations, courts have considered the children to be better off living with the full-time, stay-at-home father and receiving financial support from the breadwinner mother. And as the numbers of female breadwinners continue to grow, it seems likely this trend will continue.

Households with high-flying women and stay-at-home husbands are not considered differently than households with high-flying men and stay-at-home wives. In the landmark English case, White v White in 2000, it was made clear after all that there is no distinction in law, between the breadwinner and the homemaker.

Mothers who are the primary breadwinners, must understand that they have accepted a role in the family that may distract from their ability to be best suited as the custodial parent.

Being the primary-caretaker is also no longer the overarching determinant of custody decisions. Nevertheless, most divorce-related custody decisions are made without the intercession of the courts. Litigated custody decisions focus on “the best interests of the child,” which does not imply that there is only one fit parent. Indeed, the vast majority of mothers and fathers who do not have primary custody of their children have never been proven unfit. For example, both mom and dad might be good parents, but if mom’s new residence is outside the school district, the court might be resistant to having children change schools. Dad gets primary custody, but mom is not “unfit.”

 

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