Are Custody Decisions Biased in Favor of Mothers?

In custody decisions, mothers are more likely to receive primary residential custody than fathers. Although in the past decade there has been an increase in equal residential custody, mothers are still much more likely to be awarded primary residential care. Across a wide range of jurisdictions the estimates are that mothers receive primary custody 68-88% of the time, fathers receive primary custody 8-14%, and equal residential custody is awarded in only 2-6% of the cases.

Sanford Braver and his colleagues at Arizona State University recently conducted a study to see how the public would judge custody decisions and their perceptions of the legal system regarding custody (Psychology, Public Policy and Law, 2011). To examine these questions, the researchers developed three hypothetical cases in which the only variation in the cases was the amount of time that the mothers and fathers had participated in caregiving prior to the divorce. In one case, the mother provided 75% of the caregiving prior to the divorce, in the second case, the father provided 75% of the caregiving and in the third case the caregiving was 50% by both parents. These cases were presented to citizens who had been summoned to serve on a jury panel in an Arizona community. About 100 people participated in this study. The participants were given the three hypothetical cases, and then asked to imagine themselves as the judge deciding these cases based on the merits of the cases and what was best for the child. In each case they were asked how much time the child should spend with each parent.

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