ABA Family Legal Guide

Family Law

3.4 Separation, Annulment, and Divorce

Custody

Do mothers automatically receive custody?

No. Under the laws of almost all states, mothers and fathers have an equal right to custody. Courts are not supposed to assume that a child is automatically better off with the mother or the father. Of course, judges, like the rest of us, are products of their background and personal experience. Some judges may have a deep-seated belief that mothers can take care of children better than fathers and that fathers have little experience in parenting. Conversely, some judges may believe that fathers are automatically better at raising boys--particularly older boys. Judges with such biases may apply these views when they decide custody cases, although they are supposed to base decisions on the facts of each case and not on automatic presumptions. As a group, judges are fair and unbiased in their decisions, and the level of bias is less than it was in years past. Bias on the part of individual judges can be avoided if the parents are able to decide between themselves what the custody or parenting arrangements should be.

In a contested custody case, both the father and mother have an equal burden of proving to the court that it is in the best interest of the child that the child be in his or her custody. There are a couple of states that have laws providing that if everything else is equal, the mother may be preferred; but even in those states, many fathers have been successful in obtaining custody.