Fifty years ago, mothers were automatically awarded certain rights regarding the custody of children. However, society has consistently evolved toward being more gender-neutral, and fathers are playing a larger part in caring for their children. 

Therefore, many mothers are becoming concerned that their rights are no longer being fully considered. This trend raises the question: What are a mother’s rights?

A Mother’s Rights in Child Custody

Child custody can be a complicated issue, and courts generally look at whether a child was born to an unwed or married mother. However, custody rights for unwed parents differ from state to state, and even from county to county. 

The Rights of Unwed Mothers

According to the laws in most jurisdictions, the custody of the child is automatically awarded to the mother when two unwed people have a child. However, there are also options available to biological fathers. 

Legally, the child’s unwed primary caregiver has the right to make any decisions about the welfare of his or her child. These rights include: 

  • Determining who can see the child, and for how long
  • Deciding where the child will live
  • Choosing the school the child will attend
  • Receiving public benefits for the child
  • Deciding anything else a married parent with legal custody of a child would decide (e.g., religious affiliations, travel, and extracurricular activities)

It is important to keep in mind that marriage equality has caused same-sex couples to face child custody issues. Today, it is possible for a mother’s rights in a child custody dispute to include two mothers. For example, one mother might have given birth, but the other donated an egg. Therefore, the same basic principals about child custody will apply to lesbian couples.  

A Mother’s Rights When Married

Today, more women work outside the home, which has caused a change in parental roles throughout the United States. In today’s society, most child custody laws are gender-neutral. Today, courts ignore gender and look at the best interest of the child when deciding who will get custody of the child. 

However, most courts focus on specific factors to determine the best interests of the child, including: 

  • The physical and emotional health of the child
  • The relationship between each parent and the child
  • The stability of each parent’s environment
  • The connection the child has to his or her school and community
  • The relationship the child has with other family members 
  • If a parent has failed to pay child support
  • The ability of each parent to provide for the needs of the child (both physically and mentally)
  • The willingness of each parent to properly parent the child
  • Any evidence of abuse (e.g., child or spousal abuse)
  • The child’s preference (depending on his or her age) 

Difference between Legal and Physical Custody

Many parents believe that legal and physical custody are the same thing, but in reality, they are entirely different.

Physical custody involves the time you spend with your child. When you have physical custody of your child, you have the right to make basic, everyday decisions as a parent.

However, legal custody involves the ability to make important decisions about your child (e.g., education, healthcare, and religion). While one parent may have physical custody of your child, both parents generally have joint custody. Throughout the United States, the courts are finding that joint legal custody is generally in the best interest of the child. 

A Mother’s Rights in a Divorce with Domestic Abuse

While each state has its own laws about a mother’s rights in a divorce with domestic abuse, most states follow similar protocols about how this situation is handled in a court of law.

Protective Order

Perhaps you are in the process of getting a divorce, and you are a victim of domestic abuse. If so, you and your family law attorney can present evidence to the judge that shows your partner is a threat to you and your children. 

If your evidence is compelling, the judge will issue a protective order. In other words, your spouse cannot have contact with you. In addition, you can live in your home if you believe it is safe for you to be there, and you will have temporary custody of your child.

Mediation in Divorce Cases with Domestic Violence

Mediation is used for you and your spouse to come to some type of agreement about your divorce settlement. In many cases, your abuser will opt for mediation because it costs less than going to court. In addition, abusers may feel they can bully you into giving up things you would be entitled to in the settlement. 

If you are going through a divorce as the victim of domestic abuse, do not agree to mediation. It is important that the court decide the custody issues between you and your abuser.

Child Custody in Divorces with Domestic Violence

In the majority of cases, the judge will award you full custody of your child if you are the victim of domestic violence. However, you and your family law attorney must present enough evidence that your spouse could harm you or your child during pickups and dropoffs. While your spouse may have never abused your child, the threat that he could harm you or your child may be sufficient evidence for the judge to award you full custody.

Protecting Yourself and Your Child in a Divorce with Domestic Abuse

You must not downplay your spouse’s abuse, rage, or violent actions. It is possible that your spouse may become violent and abusive during divorce, even if he has never displayed those tendencies before. If you know your spouse can hurt you, it is vital that you protect yourself.   You should:

  • Find a battered women’s shelter that can protect you from your abusive spouse. 
  • Go to court, and get a protective order to keep your spouse away from you and your children. This action is important when facing a judge to justify that your divorce is due to domestic violence.

Handling Financial Issues

Perhaps your spouse took care of all the household finances, so you do not have enough money to hire a family law attorney. It is important to realize that many divorce attorneys will advise you pro bono (i.e., for free) or at a reduced rate if you are a victim of domestic abuse.

It is possible to find legal assistance in your community.  Just google “legal help” or “legal aid” in your community, and start calling. You can also call your local bar association, and ask them about a divorce attorney who can help with your individual situation. 

The important thing to remember is that you are not stuck in a marriage filled with domestic violence. Do not give up; you can find help. You need to get out of the situation and protect yourself and your child.

Labor Rights

The Family and Medical Leave Act of 1993 has established laws for companies regarding maternity leave. This act requires most companies to allow you up to 12 weeks of unpaid family leave. It also includes laws about work procedures for mothers of newborns who are returning to work. 


There are federal laws about breastfeeding, and there are also laws about it in every state except Idaho, which allows women to breastfeed in public or private.

Federal laws concerning breastfeeding are mostly for mothers who work outside the home. Employers are required to allow breastfeeding mothers to have reasonable breaktimes when they need to express their milk supply for up to a year after they have given birth to their child.  Employers are also required to provide a private and/or secluded place (other than the women’s restroom) for mothers to express their milk. 


While laws concerning your rights as a mother vary from state to state, the federal laws are consistent in protecting certain rights. When it comes to child custody, matters are never easy. If you are concerned that your rights as a mother are not being considered, you should contact a family law attorney to advise you about your rights.