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Common Divorce Myth: Mothers always get custody of the kids May 12, 2007

Posted by shelleycm in Child Custody, Dissolution, Myths.

Just in time for Mother’s Day, we’re going to dispel a mother-centered family law myth. In a word, the response to the notion that mothers always will get custody of the children is: Nope. Oregon statutes are gender-neutral in this regard: in fact, there’s a mandate that courts not give preference for either parent just because that parent is either the mother or the father. ORS 107.137(4).

Instead, ORS 107.137 provides a list of factors for courts to use in determining who should receive custody of the children in a divorce case. (The same factors apply to determination of custody matters when the parents aren’t married, too, via ORS 107.103.)

Roughly speaking, these factors boil down to the “best interest of the child.” More specifically, this means the court looks at the following factors, not giving undue weight to any one factor:

  • emotional ties between the child and other family members;
  • the interest of the parties in the child and their attitude toward the child;
  • the desirability of continuing an existing relationship between the child and the parties;
  • any abuse of one parent by another;
  • the preference for the primary caregiver of the child, if that person is determined to be fit;
  • the willingness and ability of each parent to facilitate and encourage a close relationship between the child and the other parent – but not where facilitating this relationship could pose a danger to the safety and health of the child.

ORS 107.103(1)(a)-(f).

Another factor not enumerated in the statutes but which has been mentioned in case law is the drug use of a parent. In Johnson and Johnson, 154 Or App 560, 962 P2d 752 (1998), the Court of Appeals (rather understatedly) held that drug use is not compatible with childrearing. Johnson at 566. In Johnson, the court also held that where a mother’s drug use was behind her and where the father had not been significantly involved in caring for the children, it would be inappropriate to shift custody from the mother to the father. Id.

In many cases, especially where both parties work and split childcare duties and there are no drug or abuse issues, these factors may not seem terribly helpful to the parties in looking at their case and in trying to work out a settlement.

Oregon encourages parties to resolve these disputes early on. Where custody is at issue, the parties are required to go through a mediation process after starting a child education program (these requirements are occasionally waived, but only for very good reasons).

If the parties still can’t agree, before the case goes to trial, either side can request a custody study be performed either through a public agency or a private expert. We’ve found private studies to be a very important tool in custody or parenting time disputes. The expert, usually a licensed clinical social worker or a psychologist, who conducts the study will do a very thorough evaluation, interviewing not only the parties and observing their interactions with the children, but also interviewing other references and delving into the background of the case. And while an expert may testify at trial, the expert’s report frequently assists the parties in settling the custody or parenting time issues prior to trial — saving clients subsequent attorney fees and costs.


1. Judy F. - December 13, 2007

How many States are Gender-Neutral? Could you provide a list of those States so Mothers and Fathers can benefit from this knowledge? Also, could you comment on what some mothers refer to as “Father States”? For example, many mothers believe Illinois Judges supposedly lean toward fathers in awarding custody and lenient support–what is your perspective on this perception?

2. Bill - June 16, 2008

This is certainly NOT a myth. Despite the “gender neutral” language of the statutes, in actual fact, sole custody is awarded to the mother FAR, FAR more often than to the father.

The analagous situation would be the claim that racial discrimination does not exist just because the 14th amendment to the Constitution mandates equal treatment. We all know that that amendment is not always followed; likewise, the “gender neutral” statute is followed even less.

3. nina - August 31, 2008

me and my husband are getting divorced and we have a 2 year old baby, how do I know if I get custody of the baby?

4. rebecca - October 2, 2008

states claim to be “gender neutral” but the reality is that women are overwhelmingly the primary caretakers of children. Once a mother loses or sacrifices custody she is labled unfit. A father can abandon his parental responsibilities for years and come out of the blue to demand custody and get it. This is not gender neutrality.

5. the man. - November 13, 2009

I want custody of my son. first of all, my ex wife has a 12 year old son and he’s always getting in trouble, never does his school work and disrespects his mother. the 12 year old isn’t my son but we have a 4 year old together. I’m raising my 4 year old to have respect for everyone and be good. she wants custody of him and her reason is because she’s the mother and the court won’t take him away from her. my reason is because he needs to be raised with values and obviously she failed to raise her first son right. Why don’t the court see that it doesn’t matter if she the mother and see that what’s best for the child. it’s funny that society wants more positive males to mentor younger men, but don’t want to give the fathers custody of young boys. i just don’t understand.

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