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Preference to mothers

In the past, courts gave preference to mothers as custodians, as it was assumed that they make better caretakers. This was called the “maternal preference rule.” It has however been declared discriminatory by courts.

Courts emphasise that the quality of a parent’s role is not simply determined by gender. “Mothering,” in the courts’ opinion refers to caring for a child’s physical and emotional well-being. This is not only a component of a mother, but also form part of a father’s being. Courts thus consider fathers as just as good a “mother” as the child’s biological mother, and conversely, a mother can be just as good a “father” as the biological father.

The courts view is that custody is not a gender privilege or a right. It is a responsibility and a privilege that has to be earned. While maternity may be considered when making a custody award, it would amount to unfair discrimination if a court places undue and unfair weight upon the factor of maternity when balancing that with other relevant factors. It is thus not allowed to make the assumption that mothers make better caretakers, as this will be contrary to the father’s Constitutional right to equality.

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