Who Has the Advantage in a Custody Battle?

By Beverly Bird

Updated March 19, 2020

Father having breakfast with son (4-6) smiling

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Custody disputes in a divorce really are a lot like battles, as you line up your arsenals of evidence and testimony, then fire it all off at the judge to persuade him to rule in your favor. In one respect, this is what courts intend – at least, they don't want you heading into the fray thinking that one spouse already has an advantage over the other. Custody is decided based on the best interests of your child after the court weighs a series of factors.

The Tender Years Doctrine

At one point in time, mothers were the preferred parent for custody, particularly for very young children. This preference, called the tender years doctrine, provided that they were best equipped to care for young children – presumably because they were homemakers while fathers went out to work. States have abolished this doctrine for the most part, and many have added specific language to their statutes, telling judges that they must not favor either parent based on gender. If your child is very young, however, the tender years doctrine might still apply by necessity. For example, if your baby is still nursing, the court can't easily give the father primary physical custody and the mother visitation. In some states, courts still tend to favor the mother as custodian of toddlers or young school-age children.

The Primary Caregiver

Many states' best interests factors include reference to the child's primary caregiver. This may give an advantage to the parent who typically cared for the children while the marriage was intact, regardless of whether that parent is Mom or Dad. If Mom worked in a demanding career while Dad was mostly home with the kids, he would have the edge in this respect. Courts are bullish about maintaining consistency and stability in a child's life during divorce and afterward. Judges don't like to force too many changes on children just because their parents are breaking up. Therefore, the parent who remains in the family home may have an advantage, and if she was also the children's primary caregiver during the marriage, this might give her another advantage. States' best interests factors are replete with references to the child's "stable, satisfactory environment," her "primary caretaker," and "continuity and stability."

How Well Can You Get Along With Your Ex?

The heat of your custody battle can also affect its outcome. Many states' best interests factors include consideration of which parent is most likely to promote an ongoing, healthy relationship for the children with their other parent. In other words, if you or your spouse has a history of interfering with visitation throughout your divorce proceedings, you're not likely to win any points with the judge. This best interests factor is typically waived when there are issues of domestic violence.

The Child's Wishes

In some states, if your child is old enough, her preference regarding which parent she would like to live with can give that parent an advantage. However, the court generally won't go along with her wishes if the judge doesn't feel that it's not in her best interests. Even Georgia, which has something of a reputation for capitulating to a child's wishes if she's 14 or older, will weigh her desire against the chosen parent's suitability based on other best interests factors.

Other Factors

Many of the tried-and-true custody standards still apply as well. Judges will weigh each parent's moral, emotional and physical fitness. Disability is not usually a deterrent, at least not by itself. Some states, such as Idaho, instruct judges that they must advise a parent that he has the right to submit evidence showing that medical intervention – such as equipment or medication – allows him to care for his child just as well as anyone who is not afflicted by his particular disability. Some states include as many as 13 best interests factors in their legislation, but no one single issue is supposed to take precedence over the others – they're typically weighed in total.