Does My Gender Play a Role in a Best Interest Determination?

In Child Custody by Elizabeth Stephenson

If you are a father interested in custody of your children, you may feel hopeless and that seeking custody is a lost cause. This is natural, as the concept of maternal preference in child custody proceedings, also known as the “tender years doctrine,” has existed since the nineteenth century. Under this doctrine of maternal gender preference, it was believed that children should be with their mother during their formative years (generally from age 0 to 4). In fact, these laws lasted well into the twentieth century in this country and until the 1970’s in North Carolina.

The Best Interest of the Child Standard Does Not Give Gender Preference to Mothers

In 1977, the state shifted to the “best interest of the child” standard, which makes no presumption about whether a child should be placed with a mother or a father. Instead, the focus is on the specific child’s interest. While there is no exhaustive list, North Carolina courts have looked at some of the following factors when entering best interest orders:

  • The child’s desires;
  • The child’s emotional and physical needs;
  • The role of each parent as caretaker of the child;
  • The stability that each parent can provide;
  • The parenting ability of each parent;
  • The parent’s plans to care for the child;
  • The schedule and location the child is accustomed to; and
  • Any parental history that indicates unfitness or danger, such as abuse, neglect, abandonment, substance abuse, or domestic violence.

So in theory, the fact that you are a father or a mother should have no legal bearing on whether you are successful in seeking a child custody order or a modification of an existing order. Unfortunately, judges are humans, who may have preconceptions combined with their broad discretion to make best interest decisions on behalf of children.

This is why it is critical to work with an attorney who understands that the law has no gender preference and who understands how to present a compelling record of why your children’s best interest is served in your care. A vocal, effective legal advocate can help you put the focus on your child, your relationship with your child, and the strengths that you can bring in providing your child with a supportive and nurturing home.

Contact New Direction Family Law

If you are a father seeking custody of your child, do not give up or despair. We understand that many people believe that there is a maternal preference when it comes to child custody. Fortunately, this is not the law and we urge you to contact New Direction Family Law. Our attorneys know that there is no longer a presumption that favors mothers and understand what evidence courts focus on when making custody decisions. Let us help you. Our office serves Wake, Johnston, Durham, and surrounding counties. Call (919) 719-3470 to schedule an appointment, or contact us online at our website.