By Jill H. Breslau

Historically, in Maryland, there was a time when the father was the preferred custodian for the children, since he had the duty to provide for their protection, education, and maintenance.

Later, there was a maternal preference, especially in the case of young children, called the Tender Years Doctrine. Now, the law requires that neither parent be given preference solely because of his or her sex.

The standard for determining custody is the Best Interest Standard; that is, what arrangement for access to both parents will be in the best interest of the child. There are many criteria for Best Interest, but the court has broad discretion to make decisions. Factors considered in custody disputes include the fitness of the parents, their character and reputation, what the parents want and what agreements they may have reached, the preference of a child who is old enough to form “a rational judgment,” the age, health, and sex of the child, and such other factors as whether there has been abandonment, abuse, or adultery (if detrimental to the child).

What does that mean, in practice? Statistics reflect that in the vast majority of divorces, mothers get primary custody—whether by agreement or by court order. Why? Because the law looks backward to determine the future. Whatever circumstances have existed before carry the most weight in a court’s determination about what ought to happen in the future. So if a mother has been the person who has taken the children to the doctor, if she knows their teachers and their clothing sizes and who their friends are, if she has made the babysitter arrangements and play dates and handled most of the day-to-day decision-making and discipline of the children, she will have a good chance of obtaining custody.

12 replies
  1. John Williams
    John Williams says:

    A lot is made of a woman’s rights regarding children, however, a woman is most likely to use parental alienation tactics. I am now three years away from the home, and 6 months divorced and my ex is still using the children as a weapon against me.

    One problem I had was a parental coordinator, Linda Perlman Gordon, who effectively lied under oath to support “a woman’s perspective”. Through omission and vague language, Ms. Gordon presented such a one-sided view that it took me months and thousands of dollars in professional fees to counter.

    Now, 6 months after the divorce is finalized, the ex-wife continues the same pattern that Ms. Gordon was hired to ensure neither party use the children as a weapon. Parent coordinators should consider a woman may be wrong sometimes.

  2. JP
    JP says:

    Mr. Williams, you claim that a woman is most likely to use parental alienation tactics. This is NOT a fact, only your perspective. While I’m sympathetic to your situation in wanting to have a relationship with your children, it’s unfortunate that you have bought into this “myth”. PAS grew out of the theories of Dr. Gardner, but has widely been discredited. Certainly members of both sexes can and do engage in harmful practices towards children with hopes of extracting some sort of twisted “payback” from their ex-spouse. But this is an article about “Mother’s Rights.” It would seem more appropriate then, to discuss the rights and challenges specific to mothers, such as the gender bias that often exists in high conflict cases, or how protective mothers are often faulted by inexperienced or indifferent court professionals, thus placing children in need of protection in the way of greater harm. I firmly believe the best situation for a child is to be raised by two healthy and loving parents, but too often the FR movement seems to take the position that all fathers should have equal rights to children – including abusive, drug addicted, or mentally unstable fathers, and paints any mother who would want to assure her child’s safety under the supervision of such a person as a villain. That is the struggle for mothers. The mother’s rights movement could just as easily be called the children’s rights movement, for this movement does not seek to eliminate men or their involvement in child rearing, only to ensure the continuation of their relationship with the child and the child’s right to a healthy living environment post-divorce. I have many friends who have no use for such a movement, as they married average joes who are good dads, and although they may not always get along with their ex spouse, they recognize his importance to their child. But the movement is important and relevant for mothers who were not so fortunate.

  3. Immera
    Immera says:

    It is my experience, as the stay at home mother of two currently embroiled in a nasty divorce, that the person with the most money wins regardless. As a stay at home mom who had nothing of her own and depended on my husband to support me and the children (and he did a piss poor job of it despite making a rather decent salary), I am living with my parents with two small children and absolutely no resources. I’m on welfare.

    His expensive divorce lawyer is walking all over me.

    If I had one piece of advice for stay at home moms, it would be to take everything in the house that isn’t nailed down (unless you can get the court to make him leave), clean out the accounts, sell everything you can, and give a very good lawyer a very good retainer.

    I mean it. A good divorce lawyer makes a big difference, and you can’t afford one on your own even if you do get a job immediately (and you probably can’t because you can’t afford daycare on your own).

    Even if you and your husband agree to mediation/collaborative divorce, and you both swear you are going to be civil about it, do it anyway. If he’s civil, no problem. When the divorce is over you can give it back, or negotiate a settlement and give some of it back. If things go south and he hires an attorney you are SOL, because it is likely by that point in a collaborative divorce you have already separated your finances.

    Believe me, if you are a SAHM, he is going to lord his salary over you eventually. Make sure you don’t let yourself be vulnerable by being too nice. Not being vulnerable may encourage him to be more civil, whereas if he knows he can run over you because he has more money, he just might do it.

    Do it ladies. Take everything that isn’t nailed down. Trust me.

  4. Tom
    Tom says:

    I am now the target of parental alienation by my ex wife. Until she filed a relocation motion I talked to my children EVERY day by phone and I got them EVERY weekend for the past 3.5 years. Now all of a sudden she’s doing what she used to do while we were married, she’s using the kids to hurt me. I have not seen my kids in 2 weeks and she suddenly decided we need to go back to our every other weekend rule. Anyone that knows me knows I love my kids more than life! I am a good father. I don’t drink, I don’t smoke. I don’t swear in front of my kids, I don’t sleep around. Oh the best part is that she’s a marriage counselor. I knew when this started that she would do whatever she had to do to get her way but i am determined assert my rights and not let her win.

  5. julie
    julie says:

    I know for a fact women do use their children against men. I am married to a man who has an ex-wife who is CONSTANTLY using his daughter to exact her revenge. She is re-married, too. And both her and her new hubby have caused considerable trouble regarding my husband’s seven year old daughter. She is a horrible mother who is also an emotional wreck as the numerous phone messages and ugly e-mails my husband has to endure. My husband has sole legal custody of his child, they share physical… and she does everything she can to railroad him by scheduling doctor’s appointments for non-emergency situations that are the sole responsibility of the legal custody parent.

    She constantly tries to make DEMANDS as to what, where and how things will shake out. Yet she hates the fact that he’s re-married. She tells his daughter all the time she hates both me and her father. Nice huh?

    It’s really pathetic how people use their children to exact their revenge and anger on the other person. There should be more laws to protect children against this kind of maliciousness… on both sides.

  6. Misty
    Misty says:

    Amen! to a law protecting the inocent children. I also am a step-parent of 2. We have physical custody. She had visitation set up for every other weekend, before and after school, only cuz she drove by house on her way to work. Only took advantage when my car was in driveway. Than we moved same town different location. Every other weekend continued when it was convienant for her. Never been invovled with kids school, couldnt even show up for Mother’s Day tea or Kindergarten grad. Now we have moved to another state due to military orders. Offered her 60 days in summer, instead of 30. Which the last 30 she had son had to do some summer school, but daugter was available for, she made comment i dont want daughter without son. settled for both for just 2 weeks. we also offered longer holiday visits.
    I quess this isnt good enough for her, has continued to harass, threaten, and anything else that is ugly. I cant tell you how many times social services has knocked on my door, only to be “unfounded”. Kids are seeing therapist to deal with the whole situation. Did i mentioned that she was a stay at home mom while her kids attended day care, and she has other children that she has seen in 7 yrs. I can see the uncertainity in the children when they have to go visit her. They are excited to go, only to see cousin and aunt who takes care of them. cuz mom is too tired from driving and the fact she is trying to get pregnant again.

  7. renae
    renae says:

    I have never been married but some men use the theory that women keep the kids from them as their own tactic. I was in a abusive relationship for three years and I have a beautiful two year old from that situation. Her father is content that if we go to court he will tell the judge that I kept her from him. I will not argue because for a few days I did but only after he gave me a black eye infront of her that I had to go to the ER for. I dont let that play a factor in him seeing her now. Even now he can still be hot tempered and nasty, and regardless of what he does not do I still allow him to get her where are my rights ? why do I have to share custody with some one playing dady part time ?

  8. Pat Williams
    Pat Williams says:

    The law makes it very difficult for father’s to get full custody, I know this first hand. I am a single Dad (yes I have full custody) with 3 kids. The divorce was hard on them but they are so much better off now. I got a lot of information and advice for divorce from It helped me get through the process.

  9. James J. Gross
    James J. Gross says:

    Kim: I appreciate your kind words about my article, but I welcome robust discussions on my blog. After all, these are highly charged emotional issues with the highest of stakes, namely the children.

  10. KIM
    KIM says:

    I find it disgusting that this article is intended to be a healthy, informational, support tool for mothers and the majority of the comments come from bitter dads and their “new” wives. You have your forums, please don’t be so angry and hateful for whatever your personal situations have brought about, that you interfere with the positivity of this article. Disagree elsewhere, mothers and fathers are humans and each capable of good and bad behavior.

  11. Leandra
    Leandra says:

    Does anyone know if a father in the state of Maryland can just automatically get custody because the mother hasn’t seen them for a long time? Even if the father will not let the mother see them?

Comments are closed.