Many of my clients have discussed with me their parenting and custody questions and have an assumption that the mother (in a heterosexual couple) will, by default, have priority in a custody or parenting issue in law. It is true that historically, courts used to assume that after a divorce or separation, the children were always best off living with their mother. This view reflected society's notion that women were naturally better caregivers than men, and that as such, children should stay with their mothers post-separation. This was an particularly prevalent view when the children were young, as children of "tender years" were assumed to need their mother's connection, and the role of the father was de-emphasized. Nonetheless, as a family lawyer, it is clear to me that family law courts now weigh a wide range of considerations in making determinations of custody, access and parenting arrangements. It is no longer true that there is a presumption in favour of the mother getting sole custody or primary parenting of the children. Conversely, there is no presumption that fathers should have a lesser or minimal role in their children's lives.
Family courts emphasize the best interests of the children. As such, any custody, parenting or access arrangement should foster the children's best interests. In almost all cases, it is assumed that the children's best interests are served by their having a good relationship with both parents. If it is possible and reasonable, children may spend roughly equal amounts of time with each parent. If such an arrangement isn't practical, the children will live most of the time with one parent, who will be the 'primary residential parent.' It would then normally be expected that an arrangement be made that maximizes the children's time with the parent they don't live with.
Courts often try not to vary the children's home life arrangements and schedule with their parents too drastically from the status quo. This means that if a child has been living exclusively with one parent and has not spent any time with the other parent, the court will be cautious in introducing parenting time for the parent the child doesn't live with. It is thought that the best interests of the children, especially young ones, includes refraining from extreme changes from their status quo. However, it is likely that, barring critical factors to the contrary, the court will see it as in the child's best interests to develop or maintain a relationship with both parents.
It is extremely rare that one parent will be excluded entirely from having time with their children. Even if there is a great geographic distance between the parents, and even if the parents themselves don't get along, if the non-custodial parent wants to see their kids, they will generally be given the opportunity to do so. To do otherwise would be to take away the children's right to grow up with both parents involved in their lives.
If a court is involved in determining a custody and parenting arrangement, the court will consider where the parents live, their work schedules, the children's activity schedules and ages, the role that each parent has played in the children's lives up to this point and the ability of each parent to care for the children in making the final determination. Courts will not give preferential treatment to a male parent over a female parent in determining custody or parenting schedules, as these are not relevant considerations as to the best interests of the children.
Let's look at an example. The parents of 10 year-old twins have recently separated and both want the children to live with themself. Parent A lives close to the school that they children have attended for the past four years. Parent A has a flexible work schedule that allows him to pick the children up after school and take them to their after-school activities. Prior to the separation between the parents, Parent A was the primary caregiver of the children. He took time off work to take the children to medical appointments, for school activities and to attend with them at their after-school hobbies. Parent B lives far away from the children's school and works long hours at work. Given her isolated location, there is nobody that could assist with after-school child care or to help take the children to after-school activities. In fact, it may not be possible for the children to continue with their hobbies if they move in with Parent B. Additionally, Parent B doesn't have a driver's license or automobile. Parent B did not have much involvement with the children's lives prior to separation. Given these factors, it is likely that while both parents will have custody of the children, they will have their primary residence with Parent A and will have parenting time (access) with Parent B.
Parents should always remember that they are entitled to draft their own parenting schedules and arrangements, which can then be made into a formal agreement or even a court order. Parents can work on their own, use a trained mediator, or seek the assistance of collaborative legal professionals to come to an agreement. Given the wide range of parenting schedules and options that are available, and the uniqueness of each family's situation, it is often the parents who can think of the best arrangement and schedule for their children. It is therefore always worth the parents' efforts to try to come to an agreement before going before the courts.
Nonetheless, should it be necessary to present your custody or parenting matter to the courts, do not make the mistake of assuming that the female parent will receive any preferential treatment. The judge will make a decision based upon his or her belief as to what is best for the children. Given that it is no longer assumed that a female parent is a better caregiver than a male parent, there are no grounds for a court to determine that the children's best interests are better served simply by living with a female parent if all other factors are equal.
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