A lot of people are under the impression that some states are “mother states” or states that prefer mothers over fathers in custody matters. This point of view infers that there are also “father states” where fathers are favored. These terms really annoy me because there are way too many factors that go into a custody determination, for either Moms or Dads to hang their hat on how the case will turn out.
Constitutional Safeguard vs. Having Father or Mother States
So way before all of the female liberation movement and such, women staying home to take care of the family was a “thing”. Not that it is not now, but before the 1970s, it was much more widespread. As a result, if there was a custody dispute, women were much more likely to get custody because of their role as the primary caretaker. At the same time, there were no challenges to the Constitutionality of laws that were gender-biased or courts that imposed gender bias on families.
However, today most father and mother states have custody laws that do not explicitly favor one over the other. If they did, they would be challenged on the basis of sexual discrimination. Laws that explicitly discriminate against any gender are a violation of the Fourteenth Amendment of the US Constitution. This, however, does not mean that some states’ laws are not discriminatory, it just means that they are indirect with it. So what they typically do is to lay out the criteria or pretexts that are “easier” to satisfy for one gender over the other. For example, if one of the state’s primary best interest factors lists the availability of one parent to stay home and care for the child, this can certainly be viewed as discriminatory against fathers.
The Neutrality of the “Best Interests of the Child” Standard
Every father and mother states has its own set of factors that makes up what it considers the “best interests of the child custody”. The best interests of the child’s overall objective are to take a neutral position with respect to which parent should obtain custody. It looks to which parent would provide for the child’s mental, intellectual, physical, and emotional well-being. And although some father and mother states’ have factors that are partial to either parent, the underlying basis focuses on what’s best for the child.
States that do not have specific factors leave room for courts to interpret them the way they see fit. This means that they have more latitude in how they consider which facts are more pertinent to meet the objective of the best interests of the child. In these particular instances, they are able to favor one parent over the other. So from the litigant’s perspective, it can appear to be a father or mother state.
This can be a very dangerous proposition, though, because either parent cannot focus on being the most “fit” parent because of their assumption. The belief that you have the upper hand may actually cause you to be “lose” custody.
Joint Custody as the Presumption
Some states have a presumption of joint custody being in the child’s best interests. This negates the whole idea of mothers or fathers getting a favor, particularly in such father or mother states. The presumption of joint custody being the best route for the children puts the burden on either parent to make a case otherwise. So, if the mother wants sole custody, while the father is fine with joint custody, the mother has the burden to overcome the presumption. She must do this by showing that joint custody is not in alignment with the child’s well-being. She must prove that sole custody is better to meet the child’s emotional, intellectual and physical needs more than joint custody would.
Joint custody neutralizes the idea that either parent has an advantage over the other, and that’s exactly the legislature’s intention.
The best way to prepare for a custody case is to do all the necessary research into your jurisdiction’s way of ruling. However, this does not mean to presume anything will go in your favor based on facts that have nothing to do with the best interests standard. Be prepared for the unexpected particularly where someone tells you that you’re in a “mother” or “father” state.