Are Mothers More Likely to Get Child Custody During Divorce?

Do Mothers Have a Better Chance of Child Custody?

Many people believe that mothers always get child custody during divorce or are at least more likely to. However, this is not the case in Alabama. The courts consider many factors when deciding custody and visitation, and the gender of the parent usually does not affect the decision.

Keep reading to learn how family courts determine custody during a divorce and how an Alabama divorce lawyer can help you. Your team of lawyers can explain your legal options further.

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Most Parents Share Legal and Physical Custody After an Alabama Divorce

Once upon a time, society generally believed that mothers raised children while fathers worked and provided for the family. Judges assumed that children needed their mothers around the clock and must remain with them even after a divorce. The courts often ruled this way, so it is no shock that this remains a common belief.

However, modern laws handle child custody after divorce very differently. Under Alabama law, judges must provide for joint decision-making and shared physical custody when possible. While one parent will act as the primary custodial parent, both still see the child regularly and participate in decisions about the child’s education, religion, activities, and healthcare.

The only time gender may play a role in a child custody determination would involve breastfeeding babies or an older teen. Judges generally believe that as a child grows, their relationship with their same-gender parent increases in importance. For this reason, custody decisions consider the age and gender of the child—yet it is only one of a long list of factors.

What Are the Factors Considered in an Alabama Custody Case?

Per Alabama law, a judge must consider numerous factors when ruling on child custody. These factors focus on the child’s best interests and the best environment for them as they grow up. The judge will primarily focus on the child’s needs.

As you will see below, most of these factors rely on the individual situation to determine if a mother or father will more likely receive custody of the children.

The factors considered include:

• The Parent/Child Relationship: The judge looks at the child’s relationship with each parent and considers who prepares their meals, takes them to school, helps with homework, coaches their teams, and engages with them in other activities. In many modern families, both parents actively participate in their children’s lives.
• Each Parent’s Health: The court considers the mental, emotional, and physical health of each parent as well as any conditions or concerns that could affect their ability to provide adequate care.
• Each Parent’s Financial Stability: Alabama law does not require the primary custodial parent to be wealthy. However, they want to see a history of financial stability, paying their bills on time, ensuring they meet the child’s needs, and providing food, clothing, and other necessities.
• The Environment Provided by Each Parent: The judge considers where the child would live with each parent, who else might be in the household, and if the environment suits a child of their age.
• The Child’s Wishes: Alabama law allows a judge to hear a child’s preference and consider it a factor in custody cases. However, the judge has the discretion to determine if they believe the child has the maturity to give a reasonable preference. Even when they have a preference, it only counts as one factor to consider.
• The Child’s Age: When it comes to very young babies and toddlers, mothers may have an advantage in some cases—especially if the mother exclusively breastfeeds the child. However, divorce often takes long enough that this concern does not influence the judge’s decision.
• The Child’s Gender: Judges usually recognize that as children age, their need for additional time with their same-gender parent grows. For this reason, a father may be more likely to receive custody of a teen son than a daughter. However, exceptions are common.
• Any Professional Assessments: If a professional has an opinion about the child’s best interests based on their circumstances, the judge will likely consider it. This could include social workers, doctors, therapists, guidance counselors, and others. The information provided by the assessment determines how significant this evidence might be.
• The Child’s Current Life and Activities: Alabama divorce courts strive to affect the child’s everyday life as little as possible when awarding custody. For instance, they work to keep the child in their own home, in the same school, and the same neighborhood as their friends. This factor may favor the parent who receives the family home in the divorce.
• Any History of Concerning Behavior: Ensuring the child is not subject to abuse, neglect, or violence plays a key factor in protecting their best interests. The judge will weigh any documented violence, drug use around the child, abuse witnessed by the child, and other concerning behavior as significant factors when deciding custody.

While all of these factors contribute to the judge’s legal and physical custody decision, keep in mind that judges don’t run these factors through a formula like a math problem. They do not count how many go to the mom and how many favor the dad. Instead, each factor has its weight of importance to the judge based on the overall case and any unique circumstances.

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Building a Case for Custody in an Alabama Divorce

Custody is not a single decision under Alabama law. Instead, several instructions relate to guardianship and physical custody. The judge can put one or both parents in charge of these aspects of custody.

Generally, the court refers to these two options as:

• Sole custody
• Joint custody

Most divorces result in joint custody in Alabama—almost every case involves the parents sharing responsibilities for the child. Judges only award sole custody when the child might be in danger with the other parent. “Joint custody” refers to sharing both legal decision-making powers and physical custody. However, the court will name one parent as the primary custodial parent even with joint custody.

Presenting Your Case in Court

If your goal includes being the primary custodial parent of your child or protecting them by gaining sole custody, you must build a strong argument to present to the court. Your divorce attorney manages this process. They work to ensure that the court hears your voice and concern about your child by gathering and presenting evidence to confirm your allegations.

The evidence presented and witnesses called in divorce cases and custody disputes depend on the situation and what you need to prove. Your legal team can provide advice, guidance, and action to achieve this goal in your case.

Will a Fault-Based Divorce Make It Easier to Get Custody?

Proving fault grounds for divorce rarely plays a direct role in getting custody, especially when the spouse at fault has committed adultery. Proving your spouse had an affair does not ensure that you will receive primary physical custody of the children. The court does not consider this behavior when deciding where a child should live.

However, adultery could play a role in some cases where—for example, the parent had the child around their paramour during the marriage, or the paramour has a history of drug use or other criminal behavior. These actions may make the judge question that parent’s fitness to make good choices for their child.

What Should I Do to Help My Case?

When possible, Alabama law urges judges to keep the child’s circumstances the same, causing few changes in their education, activities, and social lives. Therefore, establishing a routine and yourself as the child’s primary caregiver could help you gain primary physical custody.

If circumstances allow you to do so safely, do not leave your marital home. If you must, move to another location within your child’s school district. Discuss the option of temporary orders with your lawyer and determine if you want to request them. These orders cover from the date the court issues them until the divorce’s resolution.

Parents named the primary physical custodian in temporary orders often retain this status in the divorce decree and parenting plan—likely because they have the opportunity to prove themselves and establish a routine that works well for the child. Most judges hesitate to alter a routine when the child is thriving and has adjusted well to their parents’ separation.

Are Mothers More Likely to Receive Child Support After a Divorce?

Mothers are not more likely to get child support after a divorce, but the parent granted primary physical custody may. In most cases, this parent receives child support from the other parent. Even when both parents share physical custody almost evenly, the courts still typically order child support. The parent with primary physical custody has additional expenses because of their role, including childcare, school tuition, health insurance, and more.

The courts use special tables to calculate child support based on several factors:

• Each parent’s gross income
• The total number of children
• How many days the child spends with each parent
• Additional expenses (such as childcare and others listed above)

Parents cannot agree to a child support payment or waive this monthly expense in Alabama. The judge requires that the parties calculate the payment according to state law and include the cost in the order. Any modification to the order or change in visitation also affects child support amounts.

Custody May Change as Your Child Grows

While mothers may have a slight advantage with babies and young children, this status could change as the child ages. In fact, many parents need to alter their custody agreement as time goes on to adjust to changing needs. A lawyer can assist you with a Petition to Modify filed in the court that initially issued the child support order.

To get a modification of custody or visitation, you must either both agree to the change or prove that:

• There has been a significant change in circumstances since the initial ruling
• A different arrangement would better serve the child
• The proposed arrangement benefits the child’s best interests

Your attorney can handle this entire process for you, including building a case and providing the necessary evidence. They represent their clients to the judge and court as needed, presenting the evidence and showing why custody modification helps the child’s best interests.

What Can I Do if I Have Safety Concerns Related to Custody?

If you fear for your child’s safety when they spend time with the other parent alone, discuss your options with your attorney as soon as possible. They can explore options for you to consider and help you determine how to protect your child best.

If you want to ensure that you receive primary or sole custody in your temporary orders or receive an order of protection, you must prove abuse, neglect, or other endangering behavior to the judge. Judges hear plenty of unfounded allegations from angry and resentful partners. Your attorney can help ensure you have the proper documentation to back up your claims.

They may ask the judge to provide temporary orders that allow for supervised visitation, short visits with no overnight stays, or other options that fit the situation. Your attorney understands the severity of this matter. Your child’s safety and emotional health is the most important factor in all child custody decisions, and your lawyer can ensure that the court hears your concerns.

An Alabama Divorce Lawyer Can Help

Whether a mother or a father, you likely want to be an active part of your child’s life. You need Alabama divorce lawyer who understands this and will fight for the best outcome for you and your child. Please, don’t try to handle something as important as custody matters on your own. Have a legal advocate by your side who makes sure that everyone involved hears your voice and the court accounts fully considers what your children need.

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