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Why do mothers automatically get custody?

  • Joe2020
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30 Mar 12 #320916 by Joe2020
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Is is written in family law that upon separating a mother must get custody?

I don''t think it is ?

Surely it is up for the court to decide but up until the point at which a hearing takes place can a father leave the family home with the children upon a split?

Or in my case could I have told my ex fiance to leave my house for good and that I could have kept my son?

She would have then had to take me to court instead of the other way round.

I think this is an extremely vital point and am sure many fathers just assume the mothers get the children. Knowing otherwise many fathers would surely try to keep them.

Physiologically this is something that someone like myself could use even now during mediation for what its worth.To let her know she had no legal right to assume she could take my son when we parted. To let her know she was not recognised by the law above me back then.

Therefore if the child lives with the mother but the father has contact, he could then keep the child and the mother would have to take it to court even say 12 months after a split?

Where the father can no longer do so is after a contact order has been put in place. By keeping the child he would be breaking the order?

  • sexysadie
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30 Mar 12 #320921 by sexysadie
Reply from sexysadie
They don''t.

There are people in Wikivorce, both men and women, for whom that is not the case, and in fact after my own parents split up both I and my brother stayed with my dad.

The reason why resident parents are mainly women is that women are most often the main carers for the children before separation, so for them to carry on doing so is likely to be less disruptive for the children.

I agree that many fathers assume that the children will stay with their mother. However, many parents (both mothers and fathers) also assume that if anyone cuts back on or gives up work to look after the children, or prioritises the family over their career, for example by working locally, it will be the mother. It''s that assumption that leads more children to end up living with mothers than with fathers.

Best wishes,

  • dermot49
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30 Mar 12 #320942 by dermot49
Reply from dermot49
why not look at a solution that would allow you both to co-parent? thats not just about time or residence. neither of you own your child and every child wants to love both parents.

as to your question. mothers get custody because the father is often the leaver and its thought best that the children stay in the familial home. you can though get shared residence which recognises the value of both homes and both parents.

the family law systen is unfortunatly adversarial and antiquated and is inevitably skewed towards the residential parent ie mum.i''m about to enter it so will keep you posted!

another anolomy is of course that contact is linked with maintenance payments and there fore there is an incentive to minilmise the time spent with dads who have left. thats why thousands of kids across the country have very little contact with their fathers a few years after separation as opposed to countries like Norway which acknowledge equality in parenting and the changing face of fatherhood in recent decades.

  • Joe2020
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30 Mar 12 #320948 by Joe2020
Reply from Joe2020
I am interested in the legal side not the practicalities.Basically it seems the mother has no legal right to automatically have custody.She usually ends up with the children because of practicalities.Usually the father works and the mother doesn''t.

However if the father was wealthy and could easily afford to give up work then he has as much right to have the kids full time as the mother.
If mother and father can''t agree on custody there would be a constant tug of war until a first court hearing.Therefore one parent has to see sense and let the other have the children until a court hearing takes place for the sake of the childrens wellbeing and stability.

  • Emma8485
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30 Mar 12 #320952 by Emma8485
Reply from Emma8485
Hi Joe,

I can really see your hurt at your situation. What I would say is that you have hit a very interesting point but I will make mine non gender specific.

What I will say is that the fact that one parent whether male or female (as we see both circumstances on here) can suddenly say as in my partners case - my ex is an alcoholic and has a conviction.I fear for my childs safety (despite him having her every weekend and two mid weeks - but then of course he moved on and met someone new - sounds familiar).

Both false accusations took 9 months of Cafcass delays to disprove - there is no penalty for her deliberately misleading the court btw, and then during that time she fabricates a fear that he will abduct his child and then gets 5 months without having to send her for contact visits.

Yes its gutting and horrible, we are very lucky the Cafcas officer sees through it. However in our case she cant parent to a good enough standard in our view, and Cafcass saw this too. If she was an aedequate parent then this situation could be very different and the Cafcass report could have been very different.

I do sometimes believe that a presumption of 50/50 shared care where there are no issues such as DV or abuse, where the arrangement is practical (and I know its not in our case due to distance) would be better until disproved otherwise.

I think there would be a lot less parents going to court if this was in place simply because the current situaion does indeed mean that the longer that prevention of contact goes on, the more chance they have of winning!

I dont rant very often but I will tonight as the stress of the past year has seemingly got to me !


  • Fiona
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31 Mar 12 #320965 by Fiona
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Having Parental Responsibility means both parents have equal responsibility and rights to carry out those responsibilities. If parents cannot agree either party can apply to court for an order to regulate PR.

The court must then give regard to the welfare checklist including background and "the likely effect on him of any change in his circumstances" and generally it is agreed that it is in a child''s best interest to maintain their sense of security and established bonds unless the child isn''t surviving satisfactorily.

Therefore when a parent (either gender) was the parent primarily looking after a child during the relationship a court usually looks to maintain the status quo. If the status quo is disrupted unilaterally there is every possibility the court would restore it PDQ at an emergency with out hearing notice.

That means dads are at a disadavantage because 90-95% of fathers in employment with dependent children work in full time inflexible jobs and fathers work longer hours than any other group of men compared to around 70% of women with dependent children who don''t work or work in lower paid part time and/or flexible jobs to fit around child care commitments.

  • Joe2020
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31 Mar 12 #320970 by Joe2020
Reply from Joe2020
I never gave PR much notice before as I always thought it meant very little.

However upon a relationship split it gives the father as much right as the mother to keep the children.Whether or not that''s best for the children is up to the courts when it gets there.Until then mothers have no automatic right to custody as I think most of them think they do.

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