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Why family law courts favour mothers in modern society : the tragedy of fathers in custody battles

July 26, 2021

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This article has been written by Sneha Jaiswal from Christ (Deemed to be University) Delhi NCR. This article lifts the veil from the myth that the gender of the parent plays an important role in deciding the custody of the child and the mother gets preference over the father in custody battles.

Table of Contents

Introduction

A common misconception that the individual persists that the family law courts prefer mothers in custody battles. Individuals usually think that the mother always wins custody cases. A contribution of both parents to their child’s life will always be to the child’s benefit. Many states have explicitly instituted laws expressing that men have equivalent rights to parenting time as women. People accept the belief that the courts favour the mother in a child custody case and this myth has been proven refuted over and over again however, the idea still haunts a lot of fathers out there going through a custody battle.

Custody of the child is typically considered to mean “to provide guardianship to the child.” The Guardians and Wards Act of 1890 provides the court total authority over the appointment of a child’s guardian. In layman’s terms, this is known as “legal custody”. One of the tactics is to obtain custody of the child so that they do not have to pay maintenance to the other partner after the divorce because they are caring for the child. Such scenarios are common, but the law prioritizes the child’s best interests. This article discusses the custody of a child in society and the Indian community’s attitude toward legal jargon.

Family Law Courts and their preference in parents

Today, family courts all over the nation will approach a child custody case with a receptive outlook and a fair viewpoint. They always encourage both of the parents to be a part of the child’s life whenever possible. Inclining towards one parent or the other prior to hearing the case isn’t common practice. Nonetheless, there’s a valid justification why individuals may, in any case, accept this myth that the courts favour the mother in a child custody case. This is due to the fact that it was once usual practice for courts to favour giving custody of the child to the mother. This was especially noticeable when the children were young (babies or early primary young kids). This was likewise when mothers served more customary jobs in the home. When it comes to child upbringing, most women do the majority of the labour. That’s where the so-called “family court female bias” emerges from.

There are, however, various variables that courts will take into consideration while deciding custody of dependent children. A man may believe he’s a decent father. After all, he plays with his children consistently and has a decent connection with them. Be that as it may, if his wife accomplishes more work than her husband in dealing with the children, any child custody disputes are probably going to be chosen in support of her. There’s significantly more to raising children than playing with them. The family court female bias depends on the real factors of childcare, no specific favourable to women position.

The major reason for the myth while determining the custody of the child

There are numerous factors that courts consider in determining custody. One of the factors is subsequently whether one parent is more likely to foster a healthy relationship between the child and their other parent. A parent who has attempted to harm the child’s relationship with the other parent or would not permit contact with the other parent won’t fare well unless there’s a valid justification such as domestic violence or child abuse. Another significant aspect of child custody the courts will review is the relationship of the parent with the child. The younger the child is, the more likely it is that the child has a stronger bond with their mother than the bond between father and child.

This is not necessarily an impression of poor co-parenting on the father’s part, since newborns and toddlers tend to spend more time with their mothers. A woman is usually the one who feeds her child from birth, and their proximity provides for a different kind of attachment than a father may have with a child. Mothers are more likely to take additional time off work or stay home completely with their children than fathers. As a result, young children generally look to their mothers first as compared to fathers for basic daily needs and emotional support. This is also referred to in certain courts as the parent who is most qualified to address the needs of the child. These qualifications include accepting parental responsibility, giving spiritual guidance, feeding, and clothing to the child, providing medical care, and ensuring the child is in a safe and cherishing environment.

The reason behind the same – valid or unnecessary

The truth is, the courts don’t support one parent or the other without hearing from the family first. Various factors are taken into consideration before a final custody decision is made. If a joint custody case is off the table, they search for the parent who will ensure the child gets the best care possible for their future. Off the table cases, means have been withdrawn, canceled, and are no longer being offered. Presently, it’s more common to see both parents working all day and sharing responsibilities. That is precisely why this practice has been phased out. The judge verdicts on whatever path is in the best interest of the child. Family law courts base its judgments on the best interests of the child.

Parenting was the mother’s job. Back then, fathers were the bread-earners and mothers were the caregivers. Fathers went to work every day while the mothers tended to keep an eye on the children. If there was a divorce or judicial separation, there was never any uncertainty the mother would get custody of the child. She was the one taking care of the child. A man would never even try to seek custody of a child. He is expected to earn money. During this period, fathers didn’t consider themselves as proper caretakers of children. Even in circumstances where the mother died, the father would send the children to relatives. In the rare cases where a father requested custody, the judges used to rule in favour of the mother. The judges were mostly men and didn’t see child-raising as a proper job for a father. The presiding judge would consider the mother to be better qualified for this role. There was even a legal guideline called the “tender years doctrine.” It said that an infant belonged to a mother for up to two years of age. Also, the factors the court considers in discerning where those best interests lie are more likely to favor mothers, as most marriages are organized. Some areas have even passed regulations expressing that there shouldn’t be a custody preference that favours women over men.

Factors determine the ‘best interest of the child’

Since it has been proven that in a child custody case, the family courts do not favour the mother. In custody cases, the parent’s gender has no bearing. Courts consider various other factors while deciding the custody of the child. The final decision should be for the welfare of the child; the factor that does matter is the best interest of the child.

When deciding a child custody case, family courts determine what is in the best interest of the child for that the courts want to know the medical histories of both the parents which include mental and physical health. To determine one parent or the other physically or mentally capable of caring for the child.
Another factor is the financial condition of the parent. The financial stability of both parents. To determine which parent can better serve the child or can give a sound future.
The status of domestic abuse in the home is one of the factors for protecting children from an unhealthy environment.
The child’s age and gender are also significant factors before deciding custody. Because, in the custody case of girls, mothers are better preferred than fathers, not because of gender preference over others but because mothers can better guide their daughters like in their menstruation time whereas fathers still hesitate to talk regarding the same with their daughters. Due to this, many times daughters face poor vaginal care or diseases because of a lack of communication between parent and child.
Also, the medical history, both mental and physical, of the child plays an essential role. By knowing the status of it, judges can better decide who may better serve the child. The quality of life each parent can provide.
The lifestyle or habits of parents also impact a child. Parents struggling with alcohol, drug, or gambling addictions cannot give a healthy life to their children.
The most important factor that is taken into consideration by the judges is the will of the child. To which parent the child wants to stay or with whom they have better compatibility.
The emotional bond is also an important factor in child custody cases. With which parent-child is more connected and has better compatibility. By determining this, the court can make better decisions in the direction of the welfare of the child.
One parent’s support and encouragement to the child to have a connection with the other parent is a factor that is also taken into consideration because the fact can’t be denied that both parents carry an essential role in their child’s lives. Each parent has its own qualities and perks for the child.

Custody of child to father

It is often believed that nobody can be a better caregiver than a mother, not even a father. Although while giving custody of the child, the priority is given to mothers, and if the mother refuses to take custody of the child, the father may obtain custody of the child. Also, If the mother is mentally unstable or does not have a sound mind to take care of the child, the father is the next preferred person to get custody of the child. If the child is more than twelve years and expresses his desire to live with the father, the court may grant custody to the father.

Additionally, if the mother does not possess a moral character or has an unethical character, which can affect the child, then the court will direct the custody of the child to the father for giving a safe and peaceful environment to the child. Also, If the father proves the financial instability of the mother which can affect the future of the child and also proves his financial capacity to take better care of the child than the mother, then he may get custody of the child. Another factor to get custody in favour of the father would be if he proves that the mother’s background is not sound and if in case the child further stays with the mother will result to be lethal to the upbringing of the child or can affect his physical and mental growth. Lastly, in the event the mother is a convict herself, the authority of the child will be transferred to the father.

How to strike a balance

Times have changed. Mothers are now also standing on their feet and working. They are income earners like fathers. Even, Fathers take on a great interest in child-raising responsibilities now. Laws giving women preferential child custody rights no longer exist. Today’s judges have changed with the times. They too have different perspectives on parenting roles than their predecessors. Judges have certain guidelines which are used to determine what is in the best interest of the children. The gender of the parent plays no role in their decision. A few areas have even passed laws or regulations expressing that there shouldn’t be a child custody preference that favours mother over father because of their gender.

Although the law no longer presumes mothers are better parents, the best interests of the child often reflect the child’s custody. Overall, these outcomes propose that there is a solid view among the general public that equivalent custody is the preferred choice. Interestingly enough, the reason why mothers win custody cases now is that they attend court. Women win because the fathers often just give up custody or do not try to seek custody of their child. Looking at the battles in which both the parents participate include the father and mother, battles are more likely to be joint or in the father’s favour. Importantly, these results didn’t differ between men and women participants. A parent’s gender has nothing to do with judges’ verdicts regarding child custody. Both genders favoured equal custody.

Conclusion

The thought of paramount significance in a court proceeding for the custody of a child is the welfare of the child. No legitimate right, preferential right, or any other right holds more importance than the well-being of the child. It can’t be denied that there was gender bias in some court cases but if you’re a father contesting the custody of your child, most likely you’ll win and be happy with your child. The more involved a father can be with his infant or young child, the closer the bond will be and that closeness will set an obligation of taking care of the child by providing basic amenities to the best upbringing to the child. By concluding, I would like to mention that parents involved in child custody must keep in mind their child’s desire or wish and definitely what is good for their child’s life because custody battles are already horrible, traumatic, and exhausting experiences for a child to go through, so the main goal of a parent must be to ensure that everything they are doing for their children is to provide happiness and good life.