Are mothers automatically given child custody in divorce?

Claim: Mothers are awarded custody of their children more often than fathers.


Historically, the “Tender Years Doctrine” encouraged courts to place children in the custody of their mothers after a divorce.1 Since the 1970s, every state has changed their laws to make custody determinations based on the child’s best interests.2 Statistics show no bias in favor of the mother or against the father since the introduction of these laws.

child pulled in two directions by mother and father custody

Courts prefer to place children in environments that are stable, healthy and safe, without regard to the gender of the parent.3 In cases where both parents are able to provide appropriate care, courts overwhelmingly prefer joint custody arrangements. In California, for instance, 80-90% of custody determinations were in favor of joint legal custody.4

When sole custody is requested, fathers actually seem to have a bit of an edge. In the 2,100 contested cases in Washington between 1985 and 1990, 29% of fathers and 7% of mothers were granted primary custody.5 Nationwide, appellate courts granted sole custody to fathers 51% of the time.6

Where mothers come out ahead is in uncontested cases. In Washington, 87% of custody determinations came from the parents’ mutual agreement, and 64% of those agreements gave the mother the majority of custodial time.7 The difference begins to equalize when both parties are represented by attorneys.

Fathers and mothers both have an equal chance for custody of their children, fathers simply fight for it less often. The narrative that fathers don’t have a chance in family court may be the primary cause of their reluctance to try.

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