Who is More Likely to Win Your Child Custody Case: Mom or Dad?
I am often questioned by family, friends and potential clients about issues related to the law and the judicial process. Sometimes these questions originate from random conversations or thoughts, and sometimes people want to take advantage of the opportunity to speak with “a lawyer.” They believe everyone who graduated from law school and was admitted to a state bar is equally qualified to provide legal insight into everything from criminal justice to intellectual property.
When this occurs, many of my colleagues may feel like we are subjected to a heightened degree of scrutiny, as if we are expected to recite random statutes and procedures like we are in the final round of Jeopardy. For those who know I practice family law, the questions are endless. They include everything from temporary protective orders to child support and property division.
Perhaps the most frequent and emotionally charged questions that I receive are those concerning child custody. When discussing child custody, it is frequently asked or implied whether a parent’s success for obtaining custody is influenced by his or her gender. Therefore, I thought it would be most appropriate to discuss, “who is more likely to win your child custody case – Mom or Dad?”
In the state of Georgia, the statutory guidance of how child custody is to be determined is located in Title 19 of the Official Code of Georgia Annotated (O.C.G.A.). O.C.G.A. §19-9-3(a)(1), in part, states “[i]n all cases in which the custody of any child is at issue between the parents, there shall be no prima-facie right to the custody of the child in the favor of the father or mother.” Furthermore, there is no presumption in favor of any form of custody – whether it be joint custody or sole custody.
According to the statute, in all cases involving custody, it is the duty of the judge to determine custody solely by what is in the “best interests of the child, and what will best promote the child’s welfare and happiness.” Many litigants do not realize or appreciate this because of their experiences and the historical context of custody in the United States.
It is not hard to understand why some feel custody orders may favor one gender over the other. For many, this is what they have seen and this is what they have experienced. Let’s consider the historical context and perception. According to the U.S. Department of Commerce Bureau of the Census, Current Population Reports, issued June 1979 (Series P-23, No. 84), “[b]y 1978, [ ] 19 percent of all families with sons/daughters under 18 years of age in the home were maintained by only one parent – 17 percent by the mother and 2 percent by the father.”
This means the vast majority (approximately 89.5 percent) of all single parent households in 1978 were maintained by women. Over the years, this overwhelming percentage of single parent homes led by women has continued. In 2014, about five of every six custodial parents were mothers (82.5 percent) and one of every six were fathers (17.5 percent), according to the U.S. Census Bureau, Current Population Reports issued January 2016 (P60-255). A person can easily notice a majority of homes maintained by a single parent are led by women. However, this result does not mean all of the matters leading to this disparity were custody orders from a court.
The causes for this result are many. For example, in cases where the parents were married, I see more mothers than fathers who agree to stay home with the children or commit to reduced employment hours in order to spend more time raising the children. As a result of this mutual arrangement between the parents and the reduced hours, fathers may have increased their working hours to make up for the “lost income.”
Such facts alone would create a greater likelihood that several best interests factors identified in O.C.G.A. §19-9-3 would weigh in the mother’s favor. These factors include, but are not limited to factors “(A) . . . bonding and emotional ties existing between each parent and child; . . . (D) Each parent’s knowledge and familiarity of the child and the child’s needs; . . . (J) Each parent’s involvement, or the lack thereof, in the child’s educational, social and extracurricular activities; . . [and] (K) Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child.”
This mutual arrangement between the parties has already created a pattern for the child. If the parties are to separate, certain factors are naturally likely to weigh in that parent’s favor and as a consequence increase the likelihood that a Court would find it is in the child’s best interest to be primarily with that parent. Conversely, many mothers who may fall within this category question whether fathers have an advantage due to their economic ability and/ or the growing awareness of single father households.
Despite this historical background and the personal experiences many people have while interacting with our Courts, it is tremendously more beneficial to focus on the best interest factors rather than the parent’s gender. Judges are people too. They have opinions and feelings. This means different judges may give a different amount of weight to a single best interest factor within the same contextual setting.
Also, different judges may come to the same result in the same contextual setting even though they may afford a different amount of weight to various factors. An effective attorney will focus on creative ways of demonstrating to the judge why the factors favorable to his/her client should be provided greater weight as well as why factors not favorable to his/ her client should not be afforded much weight. However, judges are not focusing on whether mothers are better parents than fathers or whether fathers are better providers than mothers. They are focusing on what custodial arrangement will best promote the child’s welfare and best interest.
I take great pride in the relationship I share with my clients, both men and women; and consequently, the trust my clients place in me provides them with the most productive result for them and the children. I always want to prepare a client for all reasonable possibilities related to a Court’s anticipated final decision.
I find it important to understand the dynamics of the relationship between my client and the child(ren), as well as between my client and the opposing party. I believe it is important to know what works and what does not work for this mother, for this father and for this child. Having this insight early in the litigation process provides an adequate amount of time to develop a litigation strategy that can most effectively demonstrate to the Court my client’s strengths, and help neutralize my client’s weaknesses.
Sometimes it is simply a matter of finding the right language to describe what my client is already doing. Other times, it is a matter of providing my client with meaningful recommendations to modify his or her parenting style, perception or parental routine. Either way, it plants the client’s legal position on fertile ground and produces fruit that would not have otherwise existed.
So the next time I am asked “who is more likely to win your child custody case – Mom or Dad?” I am going to provide a simple answer: If you are properly advised, and you are willing to work for a just outcome … your children!
Bernard V. Pepukayi, Sr., Esq. is Senior Counsel with Hedgepeth Heredia Family Law. Reach him at email@example.com