Divorce is never easy for anyone.

A mother’s rights in divorce proceeding are important to know when figuring out difficult questions such as child custody and visitation.

Though mothers seem to have an advantage over fathers in winning custody and have statistically been more successful in obtaining custody of their children in a divorce, both parents have equal rights when seeking custody.

Factors such as the child’s best interest, time spent with the child, stable home life, and finances, are just a few of things considered by the courts when making a decision concerning custody.

Mother’s need to know their rights when entering into divorce proceedings so they can know how to best provide for their children moving forward.

Custody Rights

While women generally have an advantage concerning child custody, it is not safe to assume that they will be granted custody in contested cases.

Mothers in a divorce may seek legal custody, physical custody, or sole custody of her children. Sole custody means that she has both legal and physical custody. Parents can also have joint legal or joint physical custody of their children, which is often the parenting plan preferred by couples who are more civil with one enough and go through a more amicable divorce.

Mothers can petition the courts for physical custody, which, if granted, gives her the right to have her children live with her. If awarded legal custody of her children, a mother has the right to all decision making in matters of a child’s upbringing and discipline. If joint or shared custody is granted to both parents, then both the mother and the father have rights and responsibilities in decision making and raising the children.


If there is any matter of domestic abuse or other issues with the father in the proceedings, it would obviously be in the best interest of the child to remain with the mother. Likewise in divorces with such unfortunate circumstances surrounding addiction and other harmful behaviors, a mother has the right to seek sole custody with restricted, or no, paternal visitation.

If there is any question of the paternity of the father petitioning for custody or visitation in a divorce, a mother has the right to petition the courts for a declaration for paternity, since a father’s rights to seek child custody only exist if there is legally established paternity.

Maternal Preference

Women historically have had an advantage in obtaining child custody, but in more recent years this is not as much the case. Mothers cannot automatically assume that they will win a custody battle just based on the fact that they are mothers.

It did use to be the case in the 20th century that courts would interpret custody laws based on something called “The Tender Years Doctrine,” which assumed that young children would indeed be better off with their mothers. Some people may still be inclined to this line of thinking, the thought this doctrine fell out of favor a few decades back and has even been argued to violate the Fourteenth Amendment’s equal protection clause.

It is the case that the amount of time a parent spends with their children and the size of the role they play in parental responsibilities is an important consideration in custody and visitation decisions. Since a stay-at-home mother spends more time caring for and raising the children, a custody decision may be more likely made in her favor.

Best Interest of a Child

As it should be, the best interest of a child is the core of any court decisions surrounding custody, visitation, and so forth.

If the children are fairly young and are heavily attached to their mothers, then it may be in their best interest to continue to live with their mothers. Breastfeeding is another factor to consider when a divorced couple as infant or toddler children; this is a health concern and not necessarily a sign of maternal preference for child custody.

Children around the age of twelve or older are often allowed to have their own input in choosing custody or which parent they would like to live with, either exclusively or in a shared custody arrangement.

Not only is custody placement about the children’s well being, but so are other divorce settlements such as child support and alimony. If a mother is granted physical custody of a child, she has the right to petition for child support to help financially support the child. This is especially important if the woman was not the primary breadwinner or was a stay-at-home mother prior to the divorce. It can be difficult after a divorce for women to re-enter the workforce if they have been out of it for a considerable amount of time.


Both fathers and mothers have equal rights when it comes to seeking custody and visitation for their children in a divorce. However, mothers have lots of rights and responsibilities to consider when seeking custody and moving forward after the terms of the divorce are finalized.

Have any questions about a mother’s rights in a divorce?

Contact us at Pond Law Group for a free consultation or legal representation. Our attorneys specialize in family law and are here to help.

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