Do Moms Always Win Custody?

There is a myth out there in family court land and lately, I have heard people repeat the meme.  I want to try to dispel the myth, if I can.  I am not trying to cause undue anxiety or throw you into the realm of negative thoughts that make the battle more difficult, but what I try to do is tell the truth about family court so that you can be prepared.

Do moms always win custody?  The short answer is no.  There are groups out there, in particular, father’s rights groups, who say that woman win custody 95% of the time.  That used to be the case, but I assure you, it is not the case any longer.

Why did things change?  One reason is because father’s rights groups have fought for equality and now we see the results.  They have been pretty successful in changing minds of the judiciary.  Another reason is, that while the courts have not gone to an assumption of joint custody as their standard, meaning, in Minnesota, they have not made it law that they always award joint physical custody for parents who cannot come into their own agreement, it is in the law that children benefit from the involvement of two parents. The law does state that there is a rebuttable presumption that joint legal custody is in the best interests of the child .  That, along with changes to the way child support is determined, has already given the court the mindset that both parents have equal rights to the child and that it is in the best interests of children that the parents work together to coparent the child.  Don’t get me wrong, this is not necessarily a bad thing for a vast majority of cases.

You may have read articles where I have written that I do not believe in joint legal custody.  That is true.  What I mean by that is for cases where there are exceptions to the rules about joint custody, joint custody is an insane idea.  That is why exceptions were put into the law (see subdivision 2 a-d).  For my clients that come to me for help, they have been dragged through the mud, slandered, harassed, stalked, threatened and maligned for many years, trying to prove why they cannot coparent with the psycho ex.  Usually there have been abuse or chemical dependency issues, but they did not put it out there in court documents from day one.  Often, people are too ashamed to admit they lived with that, or they think things will be better after divorce and so they agree to joint custody, not knowing their are exceptions and not foreseeing the insanity that is going to come their way.  Really, those of you who live the insanity, how could you have ever imagined this?  Those in hostile coparenting situations were also never told that abuse or chem dep issues would have made any kind of difference.  The legal meme is, the courts will never grant sole custody, especially sole legal.

Like I said, in most cases, joint custody of ANY kind, is not a bad thing.  When parents have made peace with divorce, and they can work together for the children, that is the best outcome.  The second best outcome is for parents, who despise each other, to have minimal contact with each other.  The worst outcome is these high conflict cases where one parent uses the children as a weapon.  There is no way to build a coparenting relationship when you cannot trust the other parent.  Period.  The courts should understand this by now, but they do not.

So, the point of my post is that a mother should not assume that she is going to get custody.  No matter if you were a stay at home mom, were the one who did all the driving of children to various events, were the one who always took the children to the doctor, etc., you do not come in with any extra points in the parenting column.  Can a stay at home mom lose custody?  Yes, and I know some moms like that to whom I could introduce you.

It is my opinion that it would be best for children if the parenting roles stayed the same as they were during the marriage, meaning that, if mom did the heavy lifting of driving the kids to and from appointments or events, and they want to continue on the same, that should happen.  Unfortunately, once one party has been told they have the right to x, y and z, they start to want x, y, and z, whether they had been interested in that originally or not.

If your ex files for custody, whether you are a mom or a dad, you need to take this seriously.  Consider trying mediation about this because you are always better off making your own agreement, rather than allowing a judge to decide.  Some of these judges leave a lot to be desired.  Understand that when the court deals with money or property, they try to end with a zero balance sheet.  It can depend on how long you were married and other factors.  When the court deals with your children, they also want to try to get a zero balance sheet.  They don’t think that either parent is better for the child.

You cannot know how a custody battle is going to go, until it goes.  It depends on the judge, the thirteen factors, and can even be impacted by the judge’s mood that day.  Is that right?  No, a judge should not take his or her bad day out on you.  Still, it happens.

It also happens, in high conflict divorce cases, there are high numbers of cases where the father wins custody.  Never say that they will never take custody from me.  When you say that, you are basing that on a myth from years ago.  Times have changed and the courts and judges have changed.  Tread cautiously when it comes to custody of your child.

Yes, mothers do sometimes lose custody.

Image courtesy of Stuart Miles /

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