How Can A Mother Win Sole Child Custody? FAQ

KEY ISSUES

In custody disputes, how do courts determine if one parent should be awarded sole custody of the child?
In custody disputes, how do courts decide what is in the child’s best interests?
What is the difference between sole and shared custody?
What is the difference between legal and physical custody?
Are mothers favored in child custody contests?
How can a parent’s emotional and financial fitness affect child custody disputes?

(The diagram below illustrates the legal distinction between shared and sole custody, legal and physical custody, and the types of evidence required by the court to determine whether awarding sole custody to either spouse will be in the child’s best interest.)

What Type of Evidence Must the Mother Prove to Get Sole Custody of the Child?

The primary evidence must demonstrate that the mother’s custody of the child would be in the child’s best interest.

Establishing evidence needed to prove these assertions to the court must be more than bare allegations. The mother must offer truthful, relevant, and credible evidence to support her claims against the father.

Do Mothers Seeking Sole Custody Have an Advantage Over Fathers?

Mother’s fitness for sole custody has been historically favored

Courts have historically favored mothers as superior caregivers, especially in divorce cases involving young children. Divorce lawyers have referred to the judicial preference favoring mothers as the “child’s tender years” doctrine.

There has been an unspoken preference favoring custodial mothers. The “mama bear” doctrine is still alive today in many jurisdictions. A case can be made that there exists a cultural belief that a mother’s emotional bond with a young child is substantially more robust and loving than what the father can provide. This is especially true if the child is in their tender years, usually children under ten.

Notwithstanding, there has been a shift in recent years towards states requiring family court judges to take a more neutral and objective approach in determining the division of child custody.

In light of this shift, divorce courts in most state jurisdictions today will make a concerted effort to make gender-neutral decisions without prejudice or favor and on a case-by-case basis.

What Are The Primary Differences Between Legal and Physical Custody?

Sole legal custody

Should one parent be awarded sole legal custody, the parent is said to have legal authority over the child’s welfare.

Sole legal custody means the parent will have the legal right to make all critical decisions regarding the child’s life, including:

Health decisions
Legal decisions
Education decisions
Religious upbringing decisions
Extracurricular activities

Sole physical custody

Sole physical custody is when the child resides full-time with one parent and cares for the child daily.

How does the court decide if the mother should receive sole legal and physical custody?

First and foremost, the court must be convinced that the child’s best interests are served if the mother has full physical and legal custody. This fact can be convincingly proved if the court determines the child’s safety and welfare might be compromised if the father were to share custody of the child.

The court must review and weigh all the evidence to make these determinations. In doing so, the court must consider many factors, which will be examined later in the article. For now, consider the following legal tip:

Whether the judge rules that the mother should have sole or shared custody will always be based on what is in the child’s best interest.

Should I Hire a Divorce Attorney to Represent Me?

Definitely. Especially if you are seeking sole custody of the children. A skilled divorce and family lawyer will guide you through the child custody process and ensure you gather the evidence to prevail.

The issues of child custody are almost always emotionally charged. This is almost always true when one parent seeks full legal and physical custody of the children.

You are too close to the child custody issues to be objective and convincing to a court. This is why representing yourself is almost never advised.

If you are going through financial hardship, you should consider using a local legal aid near you. Many such services offer divorce legal representation services for the parent, as well as advice on how to best protect the legal rights and safety needs of your children.

According to the U.S. Census Bureau, as of 2021, 80% of custodial parents are mothers, highlighting the historical trend of courts granting mothers custody. This statistic underscores the frequency of mothers being awarded custody but also contextualizes the ongoing discussions about gender neutrality in custody decisions.

Should I Hire A “Mothers-Only” Divorce Attorney?

The decision to hire a “mothers only” divorce lawyer depends on your case’s situation and the factual context.

However, the best approach is to balance the upsides and downsides of retaining a mothers-only attorney:

Potential upside to retaining a “mothers only” attorney:

Don’t make a rash decision when hiring your attorney. Consider consulting with several local divorce lawyers and make sure to ask lots of questions before retaining the lawyer.

What Factors Favor the Mother Being Awarded Full Custody?

Meeting the child’s basic needs

The mother must show she can provide for the child’s basic needs, which include providing the child with the following:

A safe and clean living space
Healthy meals and regular mealtimes
A consistent schedule for different types of activities
Consistent and regular emotional support
An engaged and high level of involvement in the child’s extracurricular activities.

The court will also consider if the mother has been and continues to be the child’s primary caretaker. If so, the court will consider if the mother had the time, resources, patience, and dedication to care for the children.

If the mother has not been the primary income earner, the court will still consider whether the mother can meet the child’s basic needs. However, it is important to note that this will also depend on how much child support the father will be ordered to contribute to raising the child.

What Factors Does the Court Consider When Determining a Parent’s Financial Stability?

Determining a parent’s financial stability is essential when considering child custody matters. The court wants to ensure the custodial parent can provide a safe, healthy, and secure environment.

Most divorce courts will consider the following financial factors:

The present and expected net income of the parent. The court sometimes requires the parents to fill out a sworn financial declaration and, if necessary, produce tax returns and bank statements.
The total debt, expenses, and liabilities of the parent. These may include mortgage, rent, car payments, credit card debts, student loans, and other recurring expenses.
The employment history of the parent. The court will look to see if there have been frequent and unexpected job changes or long periods of unemployment.
The living conditions of each parent.
If the parent has been financially reckless:

The court will look for evidence of financial recklessness, such as bankruptcies, being sued by creditors, and unpaid bills and debts – all of which will demonstrate the parent’s lack of financial stability.

What Types of Evidence Demonstrates Financial Responsibility?

Courts favor financially responsible parents

On the positive side, the court also considers evidence of sound and responsible financial planning and management of their money and may include:

Maintaining adequate savings for the child’s future education, summer camp, and extracurricular skill building, such as learning a foreign language and receiving instruction on how to play a musical instrument.
Ensures the child is protected by adequate life and medical insurance.
The parent has a favorable credit record should the need arise to borrow money to maintain the child’s basic needs.
The parent has accumulated a solid savings account and other assets, such as real estate and savings bonds. These assets help the parent support the child’s basic needs and offer the child a higher level of security and standard of living.

What If the Child Emotionally Favors One Parent Over the Other?

The child’s preference matters

The court may consider a child’s preferences depending on the child’s age and maturity. However, this approach can backfire if it pits the child against the father, resulting in the father’s alienation from the child, which can cause severe emotional and psychological damage to the child. In other words, denying access to the other parent, especially for vindictive purposes, is dangerous and unfair to the child and the other parent.

What If the Father Is Less Available to Meet the Child’s Needs?

The absentee father

Should the father’s work schedule and availability not allow for supportive and meaningful parenting, the court will look to the parent who is willing and able to be there for the child after school, on weekends, and during vacations. This fact usually weighs heavily in the mother’s favor.

What If the Child Already Feels Emotionally Settled with The Mother?

Maintaining a healthy child’s status quo

Assuming the child is with the mother and resides at the family home, the court’s focus may shift to how well the child is presently doing in this environment, including having established friends and classmates doing well at school and enjoying local extracurricular activities.

What If the Mother Can Prove a More Stable Lifestyle for The Child?

Stability is always favored by the court

The court will favor the mother’s right to custody if she can establish that she can offer the child a preferable lifestyle, which can mean a more stable, child-friendly lifestyle.

What If the Father Moves Out of State or Far Away from the Child?

The distant parent

Should the father have plans to relocate out of state or far away from the family home, this will likely influence the court’s decision to favor the mother receiving legal and physical custody.

The court will consider how the father’s absence from the child’s life might impact the child’s emotional and psychological state and whether it reflects a form of child abandonment.

What If the Father Is Shown Not to Be Morally Fit?

The moral fitness of the parent

While this can be subjective, courts in most jurisdictions may consider each parent’s moral fitness, such as whether a parent’s behavior and decision-making reflect values not in the child’s best interest. In other words, the court determines the father poses a risk of danger and neglect to the child.

What If the Father Has a History of Domestic Violence?

Damaging evidence against the father if proved

If the father has a history of domestic violence, it will likely shape the court’s decision in the mother’s favor. The primary reason is the risk to the child’s safety and well-being – a risk that most courts will not tolerate.

What If the Mother Alleges the Father Has a History of Mental Illness?

Mental illness can be a sign of parental instability

Assuming the mother can provide evidence that the father’s mental illness risks the child’s well-being or affects his ability to provide safe and proper care, the court will closely examine all relevant aspects of the mother’s claim.

The court will want to examine the following alleged instability issues:

Whether the severity of the illness will affect the father’s ability to care for the child.
Whether the mental illness can affect the child’s safety or emotional welfare.
The court may wish to consider the history of the father’s mental illness, including medical reports, treatment history, and sworn declarations or testimony of third-party witnesses.
The court may wish to hear from both sides and allow the parties to present expert testimony on the mental health issues.
The court may order an independent fitness and psychological evaluation of the father and, under certain circumstances, the mother.

What If the Mother Alleges the Father Abuses Drugs or Alcohol?

Suppose a mother offers evidence at trial that the father abuses drugs or alcohol, like the situation with mental illness discussed above. In that case, the court must examine and consider the evidence.

If the court finds that the father’s substance abuse risks the child’s safety or exposes the child to harmful environments, the judge will be inclined to award the mother sole custody of the child.

The court will consider the following drug and alcohol addiction factors:

The severity of the substance or alcohol abuse.
Risk to the child’s safety.
The parent’s commitment to rehabilitation.

What Are the “Do’s” And “Dont’s” In Litigating a Child Custody Trial?

During court proceedings, stay calm and respectful.
Avoid emotional outbreaks, quarrels, or disrespectful behavior in court. I will harm your case and make you appear unstable.
Keep accurate records and document the father’s negative behavior with the children. Emails and texts can be used to demonstrate unstable and irresponsible parental behavior.
Obtain third-party statements of people who have observed negative interactions and behavior towards the child.
Follow all court orders and always be respectful to the court. If temporary court orders are in place, follow them.
Be candid and truthful regarding your financial condition. Hiding or minimizing your financial condition can quickly backfire and give the judge reason to doubt your moral fitness.
Don’t be mean or aggressive and engage in hurtful slander against the father in the judge’s presence. The court might conclude you cannot be trusted and will engage in parental alienation should you be awarded most or all the custody.

Parental alienation is when one parent slanders the other and tries to turn the child against that parent. This behavior often results in serious psychological harm to the child and is not in the child’s best interest. The court is unlikely to award sole custody to the mother if the court deems the mother’s accusations against the father are unduly exaggerated, cruel, abusive, and unnecessary.

Never commit perjury by knowingly making untrue and harmful accusations against the father, such as:

The father has physically or emotionally abused children.
The father is mentally ill, violent, and dangerous.
The father engages in criminal activity, such as dealing drugs.
The father is a deadbeat and a drunk.
The father is incapable of earning a decent living

In many jurisdictions today, a mother can quickly lose a child custody battle for engaging in harmful and untrue accusations. Also, committing perjury is a serious crime that can result in severe fines and sometimes even incarceration.

How Long Does It Take for A Judge to Rule on Sole Custody?

Depends on the case circumstances and the court’s docket

Most of the time, a judge will decide on general child custody issues at the trial’s conclusion or shortly after. However, in cases involving whether to award one parent sole custody, the time can be much longer, sometimes several weeks or months.

Here are some of the factors:

The complexity of the case
The trustworthiness of the parent’s evidence
Whether the child is currently being subject to neglect
Whether the judge has a particularly heavy caseload
Whether the court must follow specific state-imposed timelines.
Making sure the sole custody decision reflects the child’s best interests may take weeks or even months.

According to the American Arbitration Association, approximately 85% of all mediations result in settlement. This high success rate demonstrates the effectiveness of mediation as an alternative dispute resolution method in custody cases, suggesting it is a viable option for mothers seeking to avoid lengthy court battles.

Will The Mother Automatically Be Granted Sole Custody If the Father Is in Prison?

This determination is made by the court and state statute

Should the father be incarcerated at the time the mother applies for sole custody, depending on the state rules of your jurisdiction, the court will consider several factors in determining what would be in the best interests of the child:

The nature and type of crime involved
The length of the prison term
The quality of the relationship between father and child
The child’s current emotional and psychological well-being
Child safety issues

Can A Mother Obtain Full Custody Without Going to Court?

By binding agreement of the parties

Obtaining full custody of a child without going to court depends on the facts of the situation and your specific legal jurisdiction. In most cases, child custody arrangements are determined by family courts whose primary goal in custody matters is to ensure the child’s best interests.

The parents can agree on custody and parenting arrangements outside the formal divorce litigation process. The process is called divorce mediation or Alternative Dispute Resolution (ADR).

Once a final divorce settlement agreement has been mediated, drafted, and approved by the spouses and their lawyers, it can be submitted to the court for approval, which is formalized into a custody order. The agreement helps provide legal protection and enforceability of the custody arrangements.

A mediated divorce is a healthier and superior way to resolve most divorce issues, including child custody and support differences. The mediation process is less stressful and anxiety-provoking. Mediation empowers parents by providing them with a greater sense of control over the process and their lives.

After The Court Rules On Child Custody Can The Order Be Later Changed?

Petition to modify child custody order

After the divorce decree, should there be a change in circumstances of one of the parents, one or both parents may petition the court to modify its order regarding child custody including adjusting the non-custodial parent’s child support obligations.

Unfortunately, these types of hearings are usually heavily contested by the parties.

Frequently Asked Questions:

How can I prove I’m the best parent for sole custody?

Collect evidence of your involvement and stability in your child’s life, including your emotional support, financial stability, and ability to provide a safe living environment.

Will hiring a mothers-only attorney improve my chances of winning sole custody?

While a mothers-only attorney might offer specialized insight, it’s essential to weigh this against potential biases. Choose an attorney based on their expertise and understanding of your case.

Can the father’s financial situation affect custody decisions?

Yes, financial stability is a factor, but the court also considers the overall ability to provide a safe and supportive environment for the child, which includes emotional and physical well-being.

What if the child prefers to live with me?

A child’s preference may be considered depending on their age and maturity, but it won’t be the sole factor in custody decisions.

Prepare Yourself with the Right Support:

Find a Good Lawyer: This is super important. You need someone who knows all about the rules of court and can fight for what’s best for you and your child. It’s like having a guide in a complicated maze.
Think About Mediation: Sometimes talking things out with a professional mediator can help you and the other parent agree on what’s best for your child without having to fight it out in court. It’s like having a referee for making decisions together.
Join a Support Group: There are groups of people who are going through the same things as you. Being with them can make you feel less alone and give you some great advice because they understand exactly what you’re going through.
Consider Counseling: This journey can be tough on your feelings. Talking to a counselor can help you stay strong and make the best choices for your child. It’s like having a coach for your emotions.
Get Your Finances in Order: Knowing how you’ll take care of your child’s needs, including where you’ll live and how you’ll handle your finances is important. Sometimes, talking to someone like a financial planner can help you plan better.