There's a history behind this preference, of course. Historically, men were perceived as the head of the family and so the system could default to them. Then middle of the past century a
Tender Years Doctrine arose, that women were better parents, hence for a few decades the courts defaulted to favoring mothers.
The
Tender Years Doctrine is a judicial presumption that operates in Divorce cases to give custody of a young child to the mother. Most states have eliminated this presumption, and some courts have held that the tender years doctrine violates the equal protection clause of the Fourteenth Amendment to the U.S. Constitution because it discriminates on the basis of sex...
However — and this is a big however — as the Tender Years Doctrine faded away as a reason to default preference to mothers,
it appears the courts still defaulted to preferential treatment of mothers by not explaining, either verbally or in writing, why the court chose a mother for majority custody or parenting time over a father. Essentially by its silence and the greater latitude allowed in issuing orders the practice has continued in many courts.
Often the father has to challenge the court not just why he has to prove himself to be a capable father but also why the mother should not be defaulted automatically to preferential treatment. Or the reason is assumed to be that the father is the primary income earner for the family and the mother can care for the kids. One of the problems with domestic or family courts is that they're granted discretionary authority to rule without necessarily explaining their reasons for a certain outcome.
This starts with the initial temporary order which typically assigns
temporary custody and majority parenting time to one parent, again without explanation. There are problems with such policies and procedures in our sort of cases.
I recall my lawyer estimating my divorce at 7 to 9 months. He was way off. From start to finish my divorce was two weeks shy of 2 years. It was
three times longer than a typical divorce. One reason, in addition to her predicted obstruction, was that her temp order was so favorable to her there was every reason for er to delay any change and so I had to jump through every hoop of the court's steps before we could get to trial.
Also, I recall my divorce temp hearing was scheduled for about a half hour. How to explain anything in that short time frame? The magistrate did confirm my spouse had blocked contact with my preschooler for 3 months but all that got was his comment, "I'll fix that." He merely reissued the prior separation order. My lawyer shushed me, saying, "Be quiet, we'll fix it later." Guess what? During those two years not one clause was 'fixed' in the temp order. It was always, the final decree will be better. (The temp order gifted my stbEx temp custody and temp majority time so yes the final decree was better, but two years of parenting were impacted!)
What was the prior separation order? She had gotten temp custody and temp majority time as part of her protection filing. So strange, she also had to list whether there were any outstanding cases and so she listed the docket number of a case in municipal court where she was charged with Threat of DV. All the magistrate did was remove our son from her 'protection', he then issued her, a mother facing a pending DV case, full temp custody and majority time.
As a disclaimer, I later learned that courts typically view as separate the adult relationship matters (such as DV) versus the parenting matters. So yes, one could potentially be an abusive spouse in a pending case and yet be given preference in parenting. It happened to me.
Over the years (8 years!) I did rise from being blocked to alternate weekends to equal time to legal guardianship to finally majority time during the school year. (Courts prefer incremental adjustments, in order to make changes smaller and easier on the child, so I was told.) It was at that point when he was almost 12 years old when we stopped going to court.
For that reason we strongly encourage our members to seek the best (or least bad) temporary order in that initial divorce hearing. It is far more important than you think. Don't sit back assuming it will be obvious you're the more stable parent or that it will be easy to regain your lost ground as parent.