Does Mothers’ Preference Win in Custody?

Recently a male client seeking a consultation on divorce and child custody asked 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?”

No.

We lawyers sometimes forget about these “myths” of the law that people believe. This is one.

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 History of Mother’s Preference

The mother’s preference was originally for a child of “tender years.” That meant very young children. It was thought (back then) that a young child is better suited to remain in the custody of the mother.

The Court believed that the relationship between mother and child was so important that it was worthy of a legal preference for allowing the mother to keep custody of the young child(ren). The Court used to call it a “primordial tie” or a “visceral bond.” This then gave a preference to the mother in child custody disputes.

This preference for the mother was only one factor among many when deciding custody. It was supposedly applied only when all else was considered equal between the parties. It was a tie breaker consideration.

For example, if the court found that the father was a better provider, the mother’s preference would not automatically change the court’s mind. The best interests of the child has always been the ultimate standard for the court.

This preference became more of an issue in the 1970′s when some courts in Maryland started to rely on the mother’s preference as an easy answer to custody disputes.

The End of the Mother’s Preference

So, way, way way back in 1974, the General Assembly of Maryland amended the law to ensure that the mother’s preference was no longer a consideration when determining child custody.

This abolished the mother’s preference in all court cases.

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.

Conclusion & Next Steps

Today the courts of Maryland consider 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.

And it no longer matters if you are called “mommy” or “daddy.” The court will award custody to the one they consider the better custodian, after considering the best interests of the child. Gender is not a factor at all in that consideration.

Want to know more? Discover what you need to know about divorce in Maryland. Click here to see our Free Legal Consumer Guide to divorce cases in Maryland and get answers to your questions today. Click here to read our Free Legal Consumer Guide to Child Custody. Know your options. Be informed. Protect yourself.

Need a divorce lawyer or child custody attorney? Please contact us for a consultation today if you need a Maryland divorce lawyer for your family law case.

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