Does a Mother Have Special Rights in Divorce?

The Parent Who Cares

Many people mistakenly believe mothers always get physical custody of the child in divorce cases. While this is common, it is not the rule. Many mothers do get custody in divorce cases, but not because they enjoy certain rights over fathers. Rather, their role in the child’s life often influences the custody decision. Because many mothers serve as primary caretakers of children, they seem to have special rights that fathers do not. In reality, neither parent has an advantage over the other when it comes to custody.

Custody Factors

The judge will consider many factors when deciding on custody, including:

  • The child’s relationship and interactions with both parents and siblings
  • The amount and quality of the time the child spent with both parents

Based off of these factors alone, it may seem like a mother who is the primary caretaker of her child would have an advantage in a custody case. The decision the judge will make is holistic. Many other factors that have nothing to do with who spent the most time with the child prior to that point will be considered, such as:

  • Each parent’s preferences for custody
  • The child’s specific needs, and
  • The general fitness of each parent

These factors do not favor either mother or father.

What Matters More

New Jersey family courts are not gender biased. Both mothers and fathers start out in custody cases on level ground. What matters most is the role each parent played in the child’s life and the ability of each parent to provide for the child and meet his or her needs. At the same time, mothers who have been the primary caretaker of very young children do stand a better chance of getting custody, simple because of the specific needs of young children and the potential effects of changing the primary caretaker early can have on a child. This is addressed in what is called the tender years doctrine.

If you are a mother in a divorce, don’t assume the judge will grant you custody. You should speak with an experienced New Jersey custody attorney about your options for custody and what you can do to increase your chances of getting a custody award that looks out for your child’s best interests. Custody is a complex issue with complex factors. You will need an attorney to help you make sure the judge makes the best decision for your child.


Are you a parent who wants custody? Williams Law Group, LLC can help ensure your rights as a parent are protected so you can be an involved part of your child’s life. Located in Union, New Jersey, Williams Law Group, LLC provides compassionate and dedicated legal services to Union, Bergen, Essex, Hudson, Morris, Monmouth, and Middlesex counties, and the surrounding areas. Our knowledgeable attorneys handle divorce and family law, child custody, and child abuse/neglect cases. Call our office at (908) 810-1083, email us at, or contact us through our confidential online form to schedule a consultation and ultimately get connected with an experienced New Jersey divorce and child custody attorney.


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