Given current evidence about the numbers of fathers who are awarded primary or sole custody in the wake of divorce, some legal observers believe a bias rooted in 19th-century English law prevails even today in the United States. Historically, the presumption has been that mothers are more fit to take care of children up to age five or so.
Many Tennessee fathers might agree that the “tender years doctrine” seems to hold sway in the state’s courts when judges decide on child custody despite the broad national introduction in the 1970s of the concept of “best interests of the child” in determining who will have custody and who will provide financial support.
Some observers cite a U.S. Census Bureau report from late 2011 that fathers constituted only 17 percent of parents who are awarded primary custody of their children in 2009. Because most divorces are settled out of court rather than wind their way through litigation, this figure, they believe, suggests that both the courts and the parents who agree to these out-of-court settlements share this bias for the mother.
Although fathers’ rights have gained acceptance over the last few decades across the country, it may be that fathers still have a long way to go to not only be awarded custody of their children on any sort of equitable basis but also to be seen as equally deserving as mothers.
As laws have transitioned from custody and visitation to shared parenting and parenting plans, the idea of a mother who automatically deserves custody may be falling by the wayside, however slowly.
Now, in most divorce cases, courts try to determine the best interests of the child by analyzing the facts of each case. Over time, this could mean that fathers, both divorced and never married, could be granted child custody.
Source: Aljazeera America, “‘Tender years’ make it tough for dads,” Theodore Ross, Jan. 16, 2014