When it comes to child custody matters, many people presume that mothers automatically get the children. In fact, many fathers feel discouraged or that fighting a custody proceeding is a lost cause because they won’t get a fair opportunity from the legal system to actually obtain custody of their children. While it is important to understand why there is some historic truth underlying this belief, it is equally important to understand that maternal preference is not the law.
The “Tender Years” Doctrine
Prior to the nineteenth century, the law in Britain automatically gave children to their fathers when parents divorced. This wasn’t based on the children’s best interest, but was more due to women’s lack of legal rights at the time. The law changed when Caroline Norton, a well-known author and journalist pushed for women’s rights to have custody of their children. This led to the Custody of Infants Act of 1839, which created a presumption that children should be in the custody of their mothers during their tender years.
Because of the influence of the British empire on laws and culture, the “tender years” doctrine spread and was adopted by many states in America—including North Carolina—where it lasted well into the 20th century. As late as 1973, the North Carolina Supreme Court held that all things being equal, “the mother should be given [the children’s] custody” so that the children “may have the advantage and benefit of a mother’s love and devotion for which there is no substitute”.
The Law No Longer Prefers Either Parent
North Carolina abolished the tender years doctrine in 1977. One of the arguments against the application of the tender years doctrine is that it violates the equal protection clause of the United States Constitution, in providing lesser legal protections for fathers than for mothers. In its place, the state adopted the “best interest of the child” standard, which puts the focus on the child, instead of assigning gender preference.
So while it may seem that mothers disproportionately receive sole custody of their children, this is based more on the caretaking roles established between parents, and not based on a legal presumption that favors mothers over fathers. Therefore, if you are separating or are seeking custody of your children, it is well worth your while to speak to an attorney about pursuing your parental rights.
Let New Direction Family Law Assist You
New Direction Family Law is a family law firm that offers advice and representation for people seeking separations, divorces, and child custody. Our attorneys have years of valuable legal experience and will work tirelessly to advocate for your interests. Let us stand up for your rights. If you need help, contact our office today. Our firm serves Wake, Johnston, Durham, and surrounding counties. Contact New Direction Family Law today at (919) 719-3470 to schedule an appointment, or visit us at our website.
Sarah J. Hink
New Direction Family Law