Though data released by the U.S. Census Bureau in May 2020 suggest that about 80% of the 12.9 million custodial parents were mothers, the fact is that child custody laws in the U.S. are gender-neutral. The courts always decide on custody based on the best interests of the child.

Here are some more clarifications about our custody laws that will clarify the matter:

Are Mothers the Primary Caregivers?

Many people assume that the courts will favor mothers as they are perceived to be the child’s primary care providers. This perception has continued since the times when the father would go out to work while the mother took care of the kids at home. Times have changed since then and many women work outside the home. Data from the Bureau of Labor Statistics suggest that women make up 57.4% of the workforce while men’s labor force participation is 69.2%. This implies that the courts no longer assume mothers are the primary care providers. Courts want evidence showing who, in fact, cared for the children more.

Custody Cases Involving Babies

In cases involving custody of babies and infants, the courts may prefer giving custody to mothers because babies need breastfeeding and it is in the baby’s best interest to be with the mother for longer periods. On the other hand, if the baby is on bottled formula-based milk, and the father can shoulder the responsibility of feeding the baby, the court may grant custody to the father. It all depends on how the circumstances of the case reconcile with the best interests of the child.

Some Judges Can Favor Women

Child custody laws in our country do not discriminate against men. However, judges are humans and every human thinks differently. So, some judges, based on their views about parenting, may prefer awarding custody to the mother while acting within the confines of the law.

Note that physical custody is different from legal custody, and you can learn more about the difference here.

An Exception to Custody Laws

There is an exception to child custody laws – when the child is born to unmarried parents. If the father is unmarried, his legal rights to visitation and custody are very difficult to enforce . If an unwed father does not assert his parental rights early in his child’s life, he may find it difficult to be awarded primary or sole custody in most states. In other words, the father must establish his paternity,either by test or by the mother admitting his paternity. For example, in Utah, if the father establishes paternity at the time of birth or before birth, then the courts can grant him visitation rights to meet the child, just like in a regular child custody case. If the paternity is not established, then the father may have to take a paternity test and establish his paternity before petitioning the court to grant him his legal rights.

In rare cases, an unmarried father who has established paternity may even get sole child custody rights if the court feels that is in the best interest of the child – for example, if the mother doesn’t have the resources to provide proper care to the child.

We hope the material above answers the question. If you need more clarity, please get in touch with your family law attorney.