Mothers vs. Fathers – Is There Such Thing as Special Rights in a Divorce?

When determining legal decision-making authority for a child in a divorce case, parents may wonder if special rights in a divorce exist or if one parent gender is provided with more rights and special opportunities than the other. It is a common misconception that mothers receive special treatment over fathers. While there were once policies which presumed that a child’s best interests were served by remaining primarily with the mother, that policy has now shifted towards maximizing contact with both parents under the belief that a child’s best interests are actually served by meaningful contact with both mother and father (A.R.S. Section 25-403).

What is the Best Interest of the Child?

Judge Cohen, a judge in Maricopa County, Arizona, has stated that the determination of what was best was more loosely interpreted as the “least worse option,” for the child. Every legal decision-making authority case is different. When a judge must make the decision with respect to a child’s best interests, the judge must use the facts of the case to fill in the statutory framework which defines the best interests of the child.

How Do Courts Determine the Best Interest of the Child?

It is no longer about the mother receiving automatic rights to custody.  In fact, a parent’s gender may not be considered at all with respect to granting a preference for decision-making or parenting time. The court will assess factors like:

  • The mental and physical health and history of each parent.
  • How old the child is, and if the child is mature enough to express a preference themselves.
  • If the child has a strong emotional bond more with one parent over the other.
  • The child’s adjustment to home, school and community.
  • The requests of both parents.
  • The likelihood of each parent to foster a meaningful relationship between the child and the other parent

Determining legal decision making authority and child custody is highly involved. Therefore, it is best that you speak with a family law attorney at Udall Shumway, PLC about your case.

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Special Rights in a Divorce, or other family law issues, please feel free to contact 480.461.5300, log on to, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.