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Do Florida Courts Favor Mothers Over Fathers in Custody Cases?

The Gainesville Child Custody Attorneys of the Law Office of Alba & Straile take note of a common area of inquiry often presented by parents with minor children, particularly those contemplating or in the process of a separation or divorce. That is—do Florida courts favor the mother over the father? Stated differently—is there a preference placed on granting custody to one parent over another, solely based upon gender? The answer to both—NO—mothers are not afforded preferential treatment under the law, and gender considerations are irrelevant to custody determinations.

Although from a statistical perspective, mothers do win custody battles more often than fathers, this has nothing to do with gender but more to do with individual prejudices and societal norms. In better understanding the manner in which courts decide custodial issues, it is helpful to consider the historical background and societal developments that eventually led to reform, and more importantly, where we stand now.

Historically, the courts have, as a practical matter, favored mothers during child custody proceedings, often granting child custody exclusively to mothers. This was based upon a principle referred to as the ‘Tender Years Doctrine,’ in which it was believed that the best place for a young child was with their mother. As stated in a publication by the Journal of the American Academy for Matrimonial Lawyers (AAML), “[t]he doctrine, supported by stereotypes, helped to perpetuate the image of women as being softer and more natural nurturers.”

As parental roles and the structure of the family unit evolved, and largely due to the multitude of research demonstrating the manners in which shared parenting benefits the mental well-being of the child, courts too began to acknowledge the need for reform. As stated by in a 2007 publication,

“Overall, the empirical literature demonstrates numerous benefits to children, including better psychological and behavioral adjustment and academic achievement, when their living arrangements enable supportive and loving fathers to be actively involved in their children’s lives on a weekly and regular basis, including a combination of overnights and school-related and leisure time.”

In noting the limitations placed on preserving family ties, the resulting effect on the child, as well as the hardships and injustice to fathers created by application of these outdated and gender-specific principles, the tender years doctrine was eventually abolished. In recent years there has been a trend to equalize parental responsibility. As stated in the AAML journal article referenced above:

“The rise and fall of the tender years doctrine traces a story that starts with presumptions about fathers, leads to presumptions about mothers, and ends with a focus on children that at least attempts to decide custody without reference to stereotypical sexual characteristics of “mom” and “dad.”  The good news is that parents of both sexes are willing to fight for their kids even if it means fighting each other.  The end of the story delivers a message that parents are no longer defined by cookie-cutter roles and so the opportunity to parent has widened to those that want it, offering children different familial structures while offering different types of parents the opportunity be a part of that structure.”

In accordance with recent trends, the Florida State Legislature has made significant changes, over the past decade, to its state laws pertaining to child custody. Such changes reflect the legislative desire to promote the involvement of both parents in the child’s upbringing, by ensuring that the focus in child custody determinations remains on the best interests of the child.

As provided in Florida Statute 61.13(2)(c)(1):

It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.

Neither parent, whether mother or father, should be discouraged from asserting their parental rights, so long as they are fit and able to properly care for the child.

If you are a parent with a question or concern regarding child custody, whether associated with a divorce, an ongoing custody proceeding, a modification, an issue of relocation, or a family law appeal, the Gainesville Attorneys of the Law Office of Alba & Straile, PLLC want to help you.

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