Why Do Courts Favor Mothers?

Why Do Courts Favor Mothers?

The courts do not assume that the mother is a better parent – they always decide about child custody keeping in mind the best interests of the child.

That said, the last available data reveal that 2.6 million custodial fathers are caring for 4 million children, whereas 10.3 million custodial mothers are caring for 18 million children. These data may give the perception that the courts favor mothers in child custody matters, but the reality is much more nuanced.

The courts always decide on custody matters by determining what is in the best interests of the child.

According to the Courts, what Is in the Best Interests of the Child?

There is no standard definition of “best interests of the child,” which are assessed by the court after much deliberation of all the factors relevant to the case. According to the Child Welfare Department, the term best interests of the child refers to actions, services, or orders that according to the court best serve the child. The term also includes the following standard: “Which parent is best suited to provide the best care for the child.”

Typically, the courts consider the following factors:

  • Living conditions and economic state of each parent individually
  • Ability to ensure the child’s well-being, growth, and safety
  • Ability to provide adequate food, shelter, healthcare, and clothing to the child
  • Emotional bond of the child with each parent, sibling/s, family members, or caregiver – and the importance of maintaining close family ties after the divorce
  • Child’s wishes (for example, preference to stay with a particular parent)
  • Mental and physical health of the child and the parents
  • Which parent triggered domestic violence (if there was any)
  • Impact of moving out of the family home on the child (for example, will the child be given adequate care and guidance to ensure that he becomes a self-sufficient adult)
  • Providing a permanent home to the child at the earliest possible

Based on these considerations, the courts can order:

  • Legal Custody/Physical Custody
  • Sole Custody/Joint Custody

Understanding the Type of Custody Ordered by the Court

The difference between legal custody and physical custody

Legal custody allows the parent who gets it to make big decisions about the kid’s future and upbringing, while a physical custody order only determines with which parent the child will live.

The difference between sole custody and joint custody

A sole custody arrangement is one in which only one parent gets full custody of the child. In Utah, full custody means one parent has more than 70% of overnights per year with the child. In other states, however, full custody had different definitions (every state has its own definition). Sole custody is sometimes given in cases where the other parent is abusive or wholly or partly unavailable to contribute to the child’s growth. In joint custody, the child divides his/her time more evenly between both the parents’ homes.

The parent who gets sole legal custody has the authority to make all the decisions about the child’s upbringing, and can do so without input from the other parent. If joint legal custody is awarded, both parents work together to make decisions, and must agree on decisions, about the kid’s future.

Usually, when a parent is awarded sole physical custody, parents will share joint legal custody. This is because, while one parent may have significantly more time with the child, parents can still work together to make good decisions. When parents are awarded 50/50 joint physical custody, which is also referred to as shared parenting time, the child gets legal residence in both parents’ homes and they become equally responsible for physically and otherwise caring for the child based on a court-ordered “parenting plan.”

In some states, but not in Utah, when a court awards joint custody, the court determines who the “primary custodial parent” will be. The primary custodial parent is responsible for the child’s education, health, psychological development, and physical well-being.

Summing up, legal or physical custody, whether joint or sole, is awarded to the parent/s who physically and psychologically can best deliver on the “best interests of the child.”

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About the Author: Marco Brown
Marco C. Brown was named Utah’s Outstanding Family Law Lawyer of the Year in 2015. He graduated with distinction from the University of Nebraska College of Law in 2007 and is currently the managing partner of Brown Family Law, LLC.
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