Judges often award full custody of a child to a mother, especially if the parents aren’t married at the time. Unwed mothers give birth to 40 percent of the children in the United States. The proportion is much higher in some states and in some communities.
Shortly after World War II, the Supreme Court ruled that this provision applied to state family law courts. This ruling technically erased the tender years doctrine, which always gave full custody of a child to a mother. But the remnants of this doctrine still apply, in the form of the aforementioned presumption.
Keep reading to better understand how to win sole legal custody of your child.
Essentially, judges presume that if the father is unwilling to make a commitment to the family, he would not be a good full custody parent. Of course, that’s not true in all cases, which is why the presumption of full custody to the mother is rebuttable.
In most states, a judicial order or out-of-court settlement in a paternity case (more on that below) features one of three kinds of custody orders.
Incidentally, only legal court orders are enforceable in most states. If a father or other relative challenges a mothers’s full custody of a child, only a court order fully protects the mother’s legal rights.
This phrase usually refers to legal custody, which is the power to make decisions on behalf of the child. Fathers basically forfeit that right if they don’t make a legal commitment to the child, as mentioned above.
Courts usually divide physical custody, which determines where the child lives, but on a very limited basis. That’s especially true if the child is a newborn or the father has had little contact with an older child. Initially, courts often limit the father’s visitation to a few hours a week in these cases. Later, the father may ask for more time. Courts usually grant these requests, if the father has toed the line and if the mother doesn’t object.
From about 1980 to about 2010, most courts issued joint custody orders most of the time. California passed the nation’s first joint custody law in 1979.
The parents divide legal and physical custody. Most joint custody orders allow fathers to give input on issues like what doctors the child sees or what school the child attends. Additionally, most joint custody orders follow a traditional every other weekend and every other holiday pattern.
But that’s where joint custody ends. In fact, in many ways, these orders are “joint custody” orders in name only. The mother breaks a 1-1 tie in legal custody disputes. The parenting time plan in these cases usually results in about a 70-30 division of time in favor of the mother.
The winds of change blew again about forty years later. Kentucky was the first state to pass a co-parenting law, and many states followed suit.
This form of custody usually applies to physical custody. In a joint custody order, a child “lives” with one parent and “visits” the other one. In a co-parenting order, both parents must actively participate in the child rearing process.
Divided custody orders are rare in paternity cases. Typically, the fathers in these cases have few parenting skills. Until they prove to the court that they have these skills, they would not make good co-parents.
On a related note, a mother may have a hard time obtaining full custody of a child if she hires an over-aggressive “bulldog” lawyer. Many judges believe that parents who don’t cooperate during the court process certainly won’t cooperate after court supervision ends.
What to Expect in Court
Many divorcing and never-married parents communicate poorly, so a joint or divided custody order isn’t workable. If the parents fight, or if the child is accustomed to spending most of his/her time with his/her mother, a joint custody order is also very disruptive.
Co-parenting is even harder in these situations, for both mothers and fathers. As mentioned, many fathers simply lack the emotional tools to make good parenting decisions or care for children over a period of more than a few hours.
Nevertheless, judges may award limited joint custody in these cases, especially if the order includes some accommodations. For example, to ensure that both parents are on their best behavior during physical custody exchanges, the court may order the exchange to take place at a neighborhood McDonald’s or another public place.
That’s especially true if both parents agree to try their best and the court finds the arrangement is in the child’s best interests. Some factors to consider, which vary in different states, include:
- Age and gender of the child,
- Support from other family members,
- The physical and mental well-being of both parents,
- Child’s custody preference,
- Dad’s parenting skills,
- The necessity to be in a stable home,
- Parental disability, such as substance abuse,
- Verified allegations of domestic abuse,
- Child’s special needs,
- Stepchildren in the family,
- The relationship and interaction between child and parent, and
- A social worker’s and/or guardian ad litem’s recommendation.
Many judges commission social workers to investigate paternity cases and determine if a mother should have full custody of a child. Guardian ad litems (a/k/a attorney ad litems) sometimes represent children in court, so they have a voice in the process.
Getting Full Custody of a Child as a Mother in Court
A parent usually files a joint custody request as a standalone proceeding or as part of a divorce. A motion to modify an existing order might also contain such a request.
Custody matters could settle at any time. Most judges, and most lawyers as well, greatly prefer an agreed settlement to an emotional courtroom showdown. Most custody cases follow the same basic format.
The first step to getting full custody is to submit an official divorce or paternity petition, which must include the following information:
- Contact information of both parents,
- Names of both parents and the child,
- Child’s age,
- Type of custody requested, and
- Reason that type of custody is in the child’s best interests.
In some cases, especially if the other partner has committed abusive acts, the court might mask some of this information, such as contact information.
We should pause to point out that there’s a big difference between the best interests of the children, which is the northern star in child custody cases, and the best interests of the parent.
Filing Legal Paperwork
This step could be a formality. However, providing official notice to the other parent could be an issue in some cases, especially if the other parent has abandoned the marital or romantic relationships. In these situations, most courts allow alternative service of process, such as publishing an advertisement in the newspaper or, in some cases, posting notice on a social media account.
The judge usually holds a temporary hearing about two weeks after the petition is filed. This hearing sets ground rules for the duration of the proceedings. The judge also enters temporary child custody and support orders which, in many cases, become permanent orders later. Possession is nine-tenths of the law.
During this information exchange process, the two sides place all their cards face up ont he table, in terms of their claims and defenses. Discovery also often includes an aforementioned social services investigation.
Most judges refer most cases to mediation if the parents cannot fully agree on a sole, joint, or divided custody order. During mediation, a neutral, third-party mediator meets with both parents and helps them reach a mutually agreeable support, visitation, and custody agreement. At a subsequent hearing, one parent must attend to present the agreement to the judge.
Out of court settlements resolve over 90 percent of family law cases. If mediation fails, a trial will be held before the judge or, in some states, a jury.