Do Courts Prefer Giving Custody to Mothers or Fathers?

Are courts more likely to grant custody to mothers or fathers?

Courts are not more likely to grant custody to mothers compared to fathers. Courts make decisions about custody based on the best interest of the child. Here’s what you need to know about whether or not California courts prefer giving custody to mothers or fathers.

California courts would not hesitate to grant a father custody of a child if doing so suits the child’s best interest. In fact, judges often start cases by stating they view both parents equally, and then ask the parents to prove otherwise, or to prove why one may be more fit for custody. Thus, California courts do not look at gender when making decisions. Instead, courts consider each parent’s qualities in relation to how well they can care for their child.

What laws have been passed that allude to the role of gender in custody agreements?

Senate Bill 495 (SB495) was enacted in 2019 and went into effect on January 1, 2020. This law explicitly states that courts are prohibited from taking sex, gender expression and/or identity, and sexual orientation of a parent, relative, or legal guardian into consideration when making decisions on behalf of a child when granting custody. Thus, it is not legal for a court to prefer giving custody to mothers or fathers in California. Moreover, courts are to make their decisions regarding custody based on which parent can provide better care for their child.

Where did the misconception that mothers obtain child custody more easily than fathers come from?

The misconception that mothers are more likely to gain custody of their children exists because it was not always a misconception. In the past, social roles played a large part in the courtroom when judges would evaluate circumstances and cases following divorce.

During the Baby Boomer generation, gender roles deemed parenting to be the responsibility of the mother. Thus, men would practically never seek custody of their children, as their responsibility and focus was on their career and gaining wealth. Consequently, courts would not consider men to be proper caretakers of children. In fact, in the case of a mother’s death, courts were known to send children to other female relatives rather than having them remain in the custody of their father. In the past, if a father were to request custody, judges would favor the mother – thus, perpetuating gender myths that are still around today. Moreover, judges in the past even followed a legal principle called the tender years doctrine, which stated a newborn belonged with their mother for up to two years.

What factors do courts look at prior to granting custody?

Most of the time, parents will come up with a custody agreement and courts will finalize this agreement. However, in the case that parents are unable to agree on details pertaining to custody, courts will make decisions for the parents.

In California, judges will consider an assortment of factors when determining custody. Some of these factors include:

The history of care that each parent has provided for the child
The mental and physical state of each parent, and how these affect their abilities to care for the child
The household of each parent, and whether there is stability in said environment
The child’s mental and physical state pertaining to health
Whether either parent has a history of abuse – domestic or otherwise
Whether one parent is more likely to encourage and foster the child’s relationship with the other parent
Whether either parent has a past history of drugs or alcohol use
The relationships between the child and each parent
If a parent has made a false allegation pertaining to abuse about the other parent – for the purpose of gaining the upper hand in the litigation
The location of the child’s siblings, if applicable

The factors listed above – as well as any additional information relevant to the welfare of the child – are evaluated prior to granting a parent custody. The court does not make decisions based on gender, but rather weighs the factors listed above, and more, equally.

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