Written by Bill Hunter, Hunter & Hein, Attorneys at Law, PLLC, updated 03/24/2018
The Tender Years doctrine, which was prevalent for decades in the United States in child custody disputes, is the presumption that, all else being equal, a child of “tender” years (typically 13 years and younger) is better off in the primary care of his or her mother if given a choice between mom and dad. Dads have fought a long uphill battle against the doctrine in child custody disputes across the United States and have made significant ground over the years. There is now case law holding that the tender years doctrine is a violation of the equal protection clause of the 14th amendment.
With the tender years doctrine widely abolished in the US, most courts, including North Carolina courts, follow what is known as the “best interests of the child” standard. Under the best interests standard, a court will consider numerous factors when assessing a child custody case, including anything that has an impact on the development of the child’s physical, mental, emotional, moral, and spiritual facilities. Essentially, anything at all that has an impact on your child is relevant and can be used by a court as a factor in determining custody.
When working on child custody cases, we walk our clients through a number of factors that a court is likely to consider in making a custody determination, including: the role each party has played as a caretaker to the child; the home environment of each party; the methods of discipline used by the parents; the local support systems of each party including family and friends; the ability of each party to provide financial support for the child; the availability of each party to spend quality time with the child; and how each party provides for the physical, emotional, spiritual, medical, and educational needs of the child.
Has anything replaced the "tender years doctrine" presumption?
Over the last several years, there has been a large nationwide push towards equality for fathers in child custody disputes. Recently, a number of states have gone as far as mandating that the new presumption in child custody disputes is a starting place of an even 50/50 split of custodial time between each parent. Under such a presumption, a judge is required to award equal custody unless he or she makes specific findings that a 50/50 split is not in the child's best interests. Other states have not mandated the change to a 50/50 presumption, but have added suggestive language in statutes to encourage judges to move in this direction while not actually requiring it. North Carolina has NOT yet mandated the 50/50 starting point.
In addition to the “best interests” standard and any legislatively enacted starting points for custody, the “status quo” also carries significant weight in most jurisdictions. The status quo can be summed up by two questions: What is the current custody arrangement between the parties, and what role has each parent played in the life of the child leading into the court date? Most judges will understandably presume that maintaining the status quo is beneficial for the child unless evidence to the contrary is provided. All other factors considered equal, if mom has been a stay at home mom and dad currently only exercises visitation with the child every other weekend, then dad may have a difficult time winning primary or joint custody in a custody dispute. However, in the reverse scenario (where the status quo involves dad as the primary caretaker), or in scenarios in which each parent is contributing equally to the upbringing of the child, there is no longer a presumption that the mom should have primary custody, all other factors equal.
What does all of this mean for dads?
This means that dads DO have a chance in child custody disputes. Our firm’s biggest challenge is often trying to get fathers out of the “every other weekend” mindset and pushing for more time with their children. While the tender years doctrine is no longer the standard presumption in child custody disputes, dads themselves often have a difficult time moving past the notion that moms have the upper hand. However, given the equal protection laws in place and the abolition of the tender years doctrine, the sex of the parent should carry no weight when a judge makes a custody determination.
Dads have rights, should push for those rights, and are winning custody battles every day in courtrooms across the country. More and more states are mandating that in the absence of evidence to the contrary, a 50-50 split between both parents is presumed to be in the best interests of the child. Beyond the law, scientific evidence is also mounting regarding the many benefits of both parents being actively and consistently involved in their children's lives.
When involved in a child custody dispute, it is important to understand how your specific jurisdiction handles child custody disputes. Questions? We can help. If you have a child custody dispute in the greater Charlotte, NC area, including Mecklenburg and Cabarrus counties, and need the assistance of an attorney, contact our office to speak with one of our Charlotte child custody lawyers today. 704-412-1442. OR, fill out the contact form on this page and an attorney will contact you soon.
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