Court Favoritism

Is One Parent Favored Over the Other in Court?

Another question that we get asked a lot with regard to child custody is, “Is there any sense of one parent being favored over the other?” Historically a lot of people will think that mothers, or that women are going to be favored over fathers or men. I can tell you, that is not the case. We don’t have any law in North Carolina that allows for maternal preference. There’s no statute that says that mothers should be favored–in fact it’s really the opposite.

Our Judges approach each custody situation from the standpoint that, “Everybody should have 50/50 custody.” And then there’re determining factors that sway the Judge to not order 50/50. They’re going to go into it at least with a mindset that 50/50 is best. Lots of studies have shown in recent years that the child’s equal access to both parents is best for the child, so that’s what the Judges have in mind; they want to start with this idea that 50/50 is best. There’s no maternal preference.

There used to be something that was called “The Tender Years” concept as well. And that’s if it’s a young child, then that young child really needs to be with his or her mother. We’ve seen that abandoned as well. There are situations and technological advancements that allow for both parents to be great parents with infants, and with toddlers as well. There’s ways for mothers to pump breast milk and provide fathers with the breast milk they need to give the infant and there’re lots of ways now in which fathers can be equally good parents for infants and for toddlers as mothers. So, there’s no tender years preference either for mothers.

Where there can be a little bit of a preference, and this is another factor that we’re going to talk about, that we’ve been talking about these factors that the Judge is going to look at is, “Has there been a primary caregiver?”

Say that there has been a stay-at-home parent. Say it has been the mother who’s traditionally been the stay-at-home parent the entire child’s life. That parent has been the one who routinely drives the child to school or daycare, ferries them to doctor’s appointments, does the grocery shopping, prepares the meals, etc. If it’s overwhelmingly clear that one parent has been doing the brunt of this for the child’s life, then the Judge is going to give that person a little bit of credit.

I’m not going to say that that means that that person is going to always have more custodial time than the other parent, but the Judge wants to keep things consistent for the child. So if it’s been overwhelmingly obvious that one parent has really been that stay-at-home parent, and really been the one doing all the care giving for the child, and the nurturing and doing all the logistics for daycare and carpool and that sort of thing–then that parent is going to get a little bit of an edge just because the Judge wants to keep things consistent.

That’s not to say that the Judge wouldn’t draft an order that lessens that as time goes on. So it could be that that person gets more custodial time at the beginning, but the order is worked out so that over time, the other parent gets more and more custodial time, and then it equals out eventually. This idea of the primary caregiver can be an important factor for the Judge to look at.


Rosen attorneys are available for consultations by both phone and video conference – call 919-787-6668 for more information.Learn More
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