One of the most significant decisions in any divorce case involving children is the division of custody between the parents. If you ask most individuals who is most likely to receive custody during divorce, it is not at all uncommon for individuals to believe that mothers automatically receive preference from the courts. In many cases, these same individuals attribute this belief to the assumption that mothers are the primary caretakers.
Is this how the court system works? Or, is it merely an outdated belief that eventually influenced legal practice? In the modern court system, it is far more of the latter. Over the past several decades, many states have passed laws that strictly prohibit gender biases in instances of divorce and determining child custody. Today, the court’s preference for mothers is mostly a myth.
Where Did the Myth Come From?
It wasn’t always a myth that courts held a strong preference for mothers in child custody cases. In the past, this preference was a very real situation. This is also why the associated belief that mothers have an advantage has survived today—it has a basis in historical truth and did not simply develop out of nowhere.
Consider the fact that divorce truly became a socially acceptable option during the 1950s. In fact, from 1900 to the end of 1960, the divorce rate had nearly doubled. At that time, gender roles were deeply ingrained into society, and especially within family dynamics. It was believed that parenting was the mother’s job, rather than a collaborative effort between both parties. Naturally, this was reflected in the court system at the time.
Several decades ago, when a marriage ended in divorce or separation, it was almost a guarantee that the mother would receive primary custody. Even after divorce, the assumed roles were typically kept intact whenever possible. Due to the beliefs of the time, the mother was likely the party most involved in raising the child. Thus, the court would award the mother custody while the father would continue to work and financially support his children.
Traditional Bias Against Fathers
In the past, the court showed a significant bias against fathers when it came to caring for and raising children. It was widely assumed that fathers were not meant to be the caretaker of the child and would not wish to do so even after the end of a marriage. It was perfectly acceptable for fathers not to consider themselves to be a child’s primary caretaker, even in instances where the mother passed away. In cases like this, it was acceptable for children to begin living with relatives.
Even if the father attempted to acquire custody and had previously acted as a caretaker of the child, a court settlement was unlikely to work in their favor. Although most judges during this era were men, they typically held society’s predominant belief that men were not meant to act as primary caretakers. Again, this was reflected in child custody proceedings, with mothers almost exclusively being given primary custody. In fact, at one point in time, there was a legal rule known as the “tender years doctrine,” which considered the mother of a newborn to be the assumed caretaker of the child for up to two years.
Times Have Changed
Just as the social structure of the US changed from 1900 to 1960, the social structure of our day is quite different than it was in the mid 1900s. In the 2020s, it is not at all uncommon for mothers to act as the primary wage earner, rather than this being considered an exclusively male role. Similarly, more than in the past, fathers have begun to take on more responsibility when it comes to raising and caring for children. As society changed its views, judges have also changed their perspective. Compared to their predecessors, judges today have a far broader view of family structures and gender roles within the family.
Fortunately, there are no longer any laws in the United States assigning mothers preferential treatment when it comes to determining custody during a divorce. On the contrary, modern judges must abide by state laws that prohibit gender discrimination in child custody proceedings. Perhaps even more importantly, judges must ensure that the child custody determination is in the child’s best interest. At their core, contemporary child custody cases are focused on the wellbeing of the child, before anything else. The gender of the parents involved no longer plays a legal role in determining custody.
How Do Courts Determine Child Custody in Illinois?
In the state of Illinois, labels like “sole custody,” “full custody,” or “joint custody” are no longer used in the legal system. In fact, the idea of custody has been entirely revamped. Since 2016, Illinois instead utilizes a system that breaks down the idea of custody into issues of parenting time and decision-making. Most parents find that the additional specificity can be useful in a legal setting, making it easier to truly provide the child with the most beneficial outcome regardless of the parents’ genders.
Parenting time describes where the child is physically spending their time and with which parent they will be residing. These determinations typically focus on overnights. In Illinois custody cases, the title of “primary residential parent” is another important factor. The decision regarding which parent is deemed the primary residential parent can affect the schools that the child attends child support agreements and more.
Decision-making determinations consider which parent will be making important decisions on the child’s behalf. Decision-making is further broken down into a variety of categories that may be assigned to either parent, including education, health, religion, and more. In both instances, determining custody or responsibility over the child is centered around the child’s own wellbeing before anything else. In any custody case, the court must determine which situation provides the child with the best potential quality of life. This is determined regardless of the parent’s gender.
Consult With an Illinois Child Custody Lawyer
At Stange Law Firm, we have an deep understanding of child custody cases, and the crucial decisions they inspire. If you are concerned about attaining a fair child custody decision regardless of your gender, it is important to secure the services of a Metro East child custody attorney. Reach out today to schedule a consultation and begin building a strong child custody case.