Summary in Divorce
In a divorce, neither mothers nor fathers have explicit rights defined by their sex. However, woman enjoy an advantage in child custody because of their gender.
In the realm of custody, judges apply best interest of the child standard, which gives the court a great degree of latitude. Many judges interpret custody law in the light of the Tender Years Doctrine, which favors mothers as the custodial parent of children in the tender years, and the Maternal Preference, which suggests that all things being equal children are better off with their mothers. Judges work from an assumption that whenever possible, the lives of children should be disrupted as little as possible, and the Tender Years Doctrine and Maternal Preference support this assumption. In practice, this generally means that unless she is egregiously incompetent, the mother will be awarded custody of unemancipated children when custody is disputed. A woman who is a single parent managing a home and child(ren) carries a very heavy load. Nevertheless, in most cases in a divorce involving unemancipated children, the mother will get custody. Both the Maternal Preference and the Tender Years Doctrine dominated courts until the 1970s. (Interestingly, the maternal preference is a complete reversal of nineteenth century practices. Then children of divorce were routinely awarded to the father, who was considered to be their owner.) Although the Tender Years Doctrine has been abolished by statute in some jurisdictions, the thinking of judges changes slowly, and the courts still tend to award children to mothers. No lawyer can ever guarantee how a judge may apply custody law in any specific custody case.
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