If you are seeking divorce from the mother of your child, you may think that you have no chance of gaining primary custody of the child. In most cases, the mother takes custody of the child, but that is not always the case. The state governs family law, and the state's goal is to do whatever is in the child's best interests.
The best-interests standard prevails in all jurisdictions as the deciding factor in determining custody. A court considers many factors when determining what would be in a child's best interests, such as: the need of the child to have a frequent, continual and meaningful relationship with both parents and which parent is more likely to foster that; the interactions and relationships with the parents and siblings; the child's adjustment to the home, school, and community; the health of everyone involved; the ability of both mother and father to act as parents; either parent's intention to relocate the child; wishes of the parents; and the wishes of the child. (See Reference 2)
Gender-Biased Custody Decision
The tender-years presumption was grounded in the belief that a young child should be in the custody of the mother unless the mother was unfit. Most states have abandoned this rule, because basing child custody on gender is very likely unconstitutional. As a way to maneuver around the gender-biased presumption, a number of states have created a preference for custody of the child for the child's primary caretaker. In most cases, this would be the mother; however, that is not in all cases. This would be determined on a family-by-family basis. Historically, some states expressed a preference for granting custody to the parent of the same gender as the child. This was also a gender-biased rule, but because there is evidence that supports the fact that on average children do better when placed with the parent of the same gender, this would also support the best-interests standard. Instead of expressly stating that the child is placed with the parent of the same gender, the court could just as easily say that the child is placed with the parent based on the best interests of the child. (See Reference 3)
Even when the father is not granted custody of the child, the father is entitled to visitation. A parent's visitation right is a natural right that will only be interfered with under extreme circumstances. For example, if a mother and father divorce, and the father becomes a registered sex offender, visitation with his child may be denied. Under all circumstances the state wants to do whatever is in the best interest of the child. (See Reference 1)