Does Mothers’ Preference Win in Custody?

Recently a client seeking a consultation on divorce and child custody asked me if a father has a real shot at getting custody over the mother. My response was, “Of course!” This person did not seem convinced and asked, “Well, what about mothers being considered the better provider, isn’t that how Maryland determines custody?”

Child custody in Maryland is very complex, and the details are always different for each case when child custody is at issue. But the mother’s preference is not something the Maryland Courts consider to be a factor in determining child custody, at least not anymore. The mother’s preference originally to a child of “tender years.” It was thought a young child is better suited to remain in the custody of the mother. This preference for giving child custody to mom was supposedly applied only when all else was considered equal between the parties. The Court believed that the relationship between mother and child was so important that there became a preference to allowing the mother to keep custody of the young child(ren). The Court often called it a “primordial tie” or a “visceral bond.” This then gave a preference to the mother in child custody disputes.

This preference was only one factor among many when deciding custody. If the Court found that the father was a better provider, the mother’s preference would not automatically change the Court’s mind about the father getting custody of his children. The best interests of the child were was and are the largest concern by which all else is measured. This preference became more of an issue in the 1970′s when some Courts started to rely on the Mother’s Preference as an easy answer to custody disputes. In 1974, the General Assembly of Maryland amended the laws to ensure that the Mother’s Preference was no longer to be considered when determining child custody, in affect abolishing by statute the Mother’s Preference in custody cases as of July 1, 1974. The legislation including the amendment was entitled “An Act concerning Custody of Children–No Preference to Either Spouse.” When the Court has in front of it two fit and proper parents they can no longer take into account the sex of the parent as a tie- breaker when all other factors make them both equal and worthy of custody.

Today the Courts of Maryland considers both parents as having a joint responsibility to their child until the age of 18. This means both parents together and individually have the obligation to care for the welfare of their children. If the parents are not living together child custody cannot be given to either parent based solely on the parent’s gender. So, as I told the person who originally asked, yes, the Courts of Maryland used to consider the mother as a more likely option for custody of a young child. But now the Court does not consider whether that person is mommy or daddy – just whether they are the best custodian in the best interest of the child.

Elza v. Elza, 300 Md. 51, 475 A.2d 1180 (Md., 1984), McAndrew v. McAndrew, 39 Md.App. 1, 382 A.2d 1081 (1978), Cooke v. Cooke, 319 A.2d 841, 21 Md.App. 376 (Md. App., 1974), Kirstukas v. Kirstukas, 286 A.2d 535, 14 Md.App. 190 (Md. App., 1972), Oberlander v. Oberlander, 256 Md. 672, 261 A.2d 727 (1970)

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