Under the current law of almost all states, mothers and fathers have an equal right to custody. Courts are not supposed to assume that a child is automatically better off with the mother or the father. In a contested custody case, both the father and mother have an equal burden of proving to the court that it is in the best interest of the child that the child be in his or her custody.
There are a few states (mostly in the South) that have laws providing that if everything else is equal, the mother may be preferred; but in those states, many fathers have been successful in obtaining custody, even if the mother is a fit parent.
In some states, courts say that mothers and fathers are to be considered equally, but the courts then go on to hold that it is permissible to consider the age or sex of the child when deciding custody. That usually translates to a preference for mothers if the child is young or female. But, again, it is possible for fathers in those states to gain custody, even when the mother it fit.
Although judges are supposed to be neutral in custody disputes between mothers and fathers, some judges appear to be biased. An advantage of having an attorney experienced in family law cases is that the attorney may know which judges may be biased and which are not. The attorney may know what types of evidence will appeal to the judge and which types will not.
In many jurisdictions, it is possible to obtain a change of judge by asking for it. Such a change often is called a change of venue. Generally, a litigant is entitled to one change of venue without having to present a reason. The request, however, must be made before the judge has ruled on substantive issues in the case. If one is faced with a judge one suspects of bias, a change of venue can be useful (although a litigant would want to consider the other judges to whom the case might be transferred and be reasonably sure than the change will not make the situation worse).
If a case is transferred to a judge who the litigant or the attorney does not like, it will be difficult to obtain a second change of venue. Courts to not wish to allow parties to keep bouncing cases between judges. Courts usually are unwilling to order a second change of venue unless there is a clear, specific showing of prejudice by the judge to whom the case has been transferred. If a parent is before a judge who is believed to be biased (and a change of venue cannot be obtained), the parent just puts on the strongest case possible and hopes for the best.
As a group, judges are less biased in deciding custody cases today than in times past, although many observers believe bias still exists.
Possible prejudice in favor of mothers. Judges, based on their background or personal experience, may have a deep-seated belief that mothers can take care of children better than fathers and that fathers have little experience in parenting. Such judges may carry those views on to the bench, in which case a father may have a very difficult time gaining custody.
A Louisiana case illustrates the point. The trial judge gave custody to the mother saying, "It is just a physiological fact that girl children should be with their mother if there are no serious differences." Since the trial judge’s bias was clear on the record, the appellate court reversed the decision and ordered that there be further proceedings–without applying improper presumptions based on sex of the parents.
In cases in which the trial judge is less explicit about his or her prejudice, it may be more difficult to obtain a reversal if the trial judge was prejudiced.
Possible prejudice in favor of fathers. As noted in the section on evolution of custody standards, prejudice based on sex of the parent is not a one-way street. Sometimes prejudice runs in favor of fathers.
Some judges tend to automatically favor fathers, particularly if the children are boys. In an Iowa case, for example, a trial judge gave custody of two boys, ages nine and eleven, to the father, saying that the father "will be able to engage in various activities with boys, such as athletic events, fishing, hunting, mechanical training and other activities boys are interested in."
The trouble was that the testimony before the before court did not support the judge’s presumption. The record in the case did not show that the boys were interested in hunting or mechanical training or that the father’s skills in those areas were superior to the mother’s. In fact, the mother went fishing with the boys more often than the father
The Iowa Supreme Court reversed and gave custody to the mother who had been primarily responsible for raising the children. The court said, "The real issue is not the sex of the parent but which parent will do better in raising the children. It logically follows that neither parent has an edge based on the sex of the children either."
Another possible prejudice in favor of fathers may be regarded as a prejudice against working mothers. In some cases, it appears that judges have looked askance at working mothers, perhaps holding mothers to a higher standard than fathers and viewing a working mother as not serving the best interest of her child. Such judges also may view a father who shows slightly-above-average involvement in parenting as "exceptional" and reward him with custody.
It is difficult to assess how widespread this view may be among judges. Some commentators assert that bias against working mothers, especially professional women, may be a significant factor. Others suggest that a review of appellate court cases does not disclose widespread prejudice against working mothers, although it exists to some degree. If anything, most judges seem to admire a mother (or father) who can simultaneously manage work and raising children.
A parent’s work schedule normally is not a decisive factor in custody, unless there is a major difference in the amount of time each parent can spend with the child. If after a divorce, one parent will be able to spend much more time with the child than the other parent, that is a factor in favor of the parent with the more flexible schedule.