Do Mothers Have More Rights to Child Custody than Fathers?

Although many people assume that moms have more child custody rights than dads, the truth is, U.S. custody laws don't give mothers an edge in custody proceedings.

Updated by , Attorney · UC Law San Francisco

Many people assume that mothers have greater child custody rights than fathers. However, the truth is that no custody laws in the United States give mothers a preference or additional rights to custody of their children. If you are going through a divorce, or have a child outside of marriage and are considering requesting custody of your child, it's important to understand your legal rights and responsibilities.

Why do some people assume that mothers have more rights?

Some people assume mothers have the upper hand in custody cases for a few reasons. Historically, judges may have awarded mothers custody of the children because a mother was more likely to be the children's primary caretaker, while fathers typically worked outside the home. Because of this dynamic, many fathers assumed that they'd have no possibility of being granted custody, and most never even contested the issue.

    Do custody laws contain gender preferences?

    No. Today, many mothers work outside of the home and earn an income, while some fathers stay home and work as the children's primary caretakers. There is no gender preference stated in custody laws. With very young children, such as babies or infants, there may be a tendency to give primary custody to the parent who is breastfeeding an infant through the night, with few to no overnights to the other parent until the child no longer requires night feedings. However, this tendency has more to do with what's in the child's best interests (feeding schedules and sleep routines) than the biological sex or gender of the parents. If, for example, the child is drinking formula through a bottle, then there may be no need to limit overnights. Judges will make these sorts of decisions using a case-by-case analysis of the facts surrounding custody and will then determine what sort of arrangement is in the child's best interests.

    What should you do if you want custody?

    If you want to fight for custody of your children, you might need to get help from an experienced family law attorney. An attorney can answer your questions, help you try to mediate a custody agreement, or advocate for you in court if it comes to that.

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