KAYS LAW OFFICE, LLC

JEFFREY R. KAYS, ATTORNEY AT LAW

573-657-0098

jeff@kayslaw.com

P.O. Box 284

129 East Broadway

Ashland, MO 65010

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FAMILY LAW - CRIMINAL DEFENSE - BANKRUPTCY - TRIAL ATTORNEY

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WHY ARE MOTHERS FAVORED IN CUSTODY DISPUTES?

In my family law practice I am often asked, “why is the mother always favored to win custody?” My
answer is typically, “they’re not.” Or maybe better put, they’re not supposed to be. I can understand
the misconception that the mother is always favored in a custody dispute. For millennia mothers have traditionally been the caretakers and nurturers of our children while the father’s role has been to leave the home and provide for the family’s necessities. Times have changed, haven’t they?
There was once a presumption that children should always stay with the mother following a divorce.
That is no longer the case. Most states have passed laws doing away with the custody preference of
woman over men. Missouri has adopted a “best interest of the child” standard. It is presumed in
Missouri that it is in the best interest of a child to have “frequent, continuing and meaningful contact
with both parents” and from having both parents “participate in decisions affecting the health,
education and welfare of their children.” This means joint physical custody and joint legal custody is
where the court should start. These presumptions are rebuttable. The court can find that it is not in the child’s best interest for one or the other parent to have joint custody.
In determining what is in the best interest of a child the court must look at all relevant factors, including
eight factors set out in Section 452.375.2:
1. The wishes of the child’s parents as to custody;
2. The needs of the child for a frequent, continuing relationship with both parents and the ability
and willingness of the parents to function as mother and father;
3. The interaction and relationship of the child with parents, siblings, and any other significant
person in the child’s life who may affect the child’s best interests;
4. Which parent is more likely to allow the child frequent, continuing and meaningful contact with
the other parent;
5. The child’s adjustment to the child’s home, school, and community;
6. The mental and physical health of all individuals involved, including any history of abuse of any
individuals involved;
7. The intention of either parent to relocate the principal residence of the child; and
8. The wishes of a child as to the child’s custodian. (This does not mean the child must choose the
custodian or that the child can choose the custodian. It is just one factor the court will consider
in determining custody.)
Since I have been practicing I have seen more and more parents agree to a 50/50 custody time split.
This can be worked out any number of ways, but the goal is to make sure the child spends equal
amounts of time with both parents over the course of a week, month or year. Not too long ago it would be unheard of for a judge to award 50/50 custody time unless both parents agreed to it. However, in the last several years more judges are open to awarding equal custody time in contested cases. Keep in mind that each judge comes to the table with his or her own biases as to what they think is appropriate for children. This is based on their own experiences as a parent, a child and even as a family law litigator. Although Missouri law tries to level the playing field for mothers and fathers, most judges in my experience will attempt to reduce the stress that the child experiences. This can be done by trying to preserve the status quo for the child as much as practicably can be done. One way is to try and keep the child in the familiar surroundings of his home, school and community. Every family situation is unique.
When a child’s parents decide they can no longer live together, this induces trauma and stress on the
child at some level. Everyone’s goal involved should be to minimize that trauma and stress as much as possible. If the parents have been unable to agree on a joint custody plan and are in court asking the judge (a total stranger, really) to decide matters of custody, then they have already failed at protecting their children from the trauma and stress.
Back to the question at hand. Why does it seem like the mothers get preference in custody disputes? I don’t think they get preference anymore just because they are the mother. However, in our culture and society it is more likely than not that the mother will prevail after the court applies the eight factors above. The good news for fathers is that under Missouri law, they have just as much opportunity to prove that they are the appropriate custodian as the mother does (subject to the individual bias of any given judge, of course). More good news for fathers is that it is becoming commonly accepted as fact that it is in the best interest of the child to spend equal time with both parents. A recent Time magazine article reported a study in which it was found that children who lived part time with both separated parents experienced less psychosomatic health problems than children who lived with one parent and visited the other less frequently. In other words, just because a child lives out of a suitcase, going back and forth between households, the study found that was less stressful on the child than living with one parent only.
In conclusion, kids need both a loving and caring mom and dad, and Missouri courts recognize that. If the other parent of your child doesn’t want to agree to a joint custody plan, don’t give up. Find a good family law attorney and fight for the best interests of your child.
©Jeffrey R. Kays