Why do mothers (more typically) get custody?

A college student, interested in a career in family law, interviewed me earlier this week for a school project. Mostly he asked questions related to family law and one of his questions expressed a common assumption: Why do mothers get custody?

This isn’t an inaccurate assumption. Mothers get custody more often than fathers–although not nearly at the rate that they were getting it when I began practicing family law twenty years ago. There are three reasons mothers typically get custody. Two of those reasons should be obvious to anyone who practices family law. The third reason isn’t so obvious.

One obvious reason is that a large percentage of American and South Carolinian children are born to unmarried parents and S.C. Code § 63-17-20(B) grants custody of such children to the mother until the family court orders otherwise. Some fathers of these out-of-wedlock children live with the mother and child at and after birth. These father may match the mothers in developing a relationship with their children. However fathers of children born out of wedlock who do not live with the mothers often have little relationship with their children–some may not even be aware that they are fathers. Such fathers are very unlikely to be awarded custody. Because so much modern child bearing is non-marital, and because mothers of such children are much more likely to have a substantial relationship with their children than are such fathers, mothers of children born out of wedlock are more likely to be awarded custody.

Another obvious reason is that, even for children born within a marriage, wives continue to do more of the child care than do husbands. Although the social science I read shows the gap between child care provided by husbands and wives is narrowing, American and South Carolinian culture is nowhere near parity. Being the primary caretaker of children is a substantial factor in determining child custody–as it should be. So long as wives are doing more of this care, mothers of children born in wedlock are more likely to be awarded custody.

The final reason mothers are more likely to be awarded custody could be seen as lingering sexual stereotyping. Early in my career some family court judges reflexively granted mothers custody unless they were unfit (and in the early-1990’s in South Carolina, committing adultery or living with a boyfriend was, for many family court judges, evidence of unfitness). Even today, when there is a close custody case with two fit and very involved parents, my experience is that judges are more likely to award custody to the mother and give the father substantial visitation than vice versa.

While some might consider this a sign of lingering sexual stereotyping, I wonder whether this is simply a recognition of a basic biological fact that the law currently ignores: the initial effort of gestating a child falls strictly on the mother and most mothers literally feed their children from their own bodies. While equal protection mandates that mothers and fathers stand in equality at the time of the child’s birth, their relative contributions to the child’s development at that point are clearly unequal. This might have been one (unspoken) basis for the now-abolished tender years doctrine, which granted mothers of infants superior custody rights.

My experience is that the younger the child, the harder it is to take custody from a fit mother–judges may be employing their own version of tender years in their custody analysis. Given the substantial physical investment women put into their children up to the point of weaning, I cannot say that this is unjust. It may simply be harder emotionally for a judge to take a child away from a mother than to take a child away from a father. This, however, makes it more likely that mothers get custody.

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