The Tender Years Doctrine
In the 19th century, the law considered children a father’s property. In cases of divorce, children stayed with their dads. That trend reversed in the early part of the 20th century when states adopted the tender years doctrine. This doctrine states that mothers are more emotionally suited to nurturing their children, especially very young children. Most states have now abolished tender years language from their family code legislations. Their laws instruct judges not to consider a parent’s gender in custody decisions. This change in legislation allows fathers a fighting chance for sole custody in some situations.
Best Interest of the Child
A concept called the best interest of the child replaced the tender years doctrine in the millennium. Technically, courts must decide custody in a way that ensures the health and well-being of the children. This usually means frequent and meaningful contact between children and both parents. A father who wants to overcome this hurdle and achieve sole custody must generally prove that living with the mother would be detrimental to his child. Generally, he must prove that the mother is unfit, or that he was his child’s primary caregiver when the family was intact -- and that relationship should not be disrupted.
In most states, unwed mothers have sole custody from the time they give birth. This is especially true when a father's name does not appear on his child’s birth certificate. In this case, a father has no rights at all, even to visitation, until he legally establishes his paternity. This usually involves petitioning the court for an order directing the mother to produce the child for a blood test, unless she agrees to voluntarily do so. If the test is positive for paternity, a father must then petition the court a second time for custody and visitation rights. However, unless the child’s mother is unfit, most courts will not take custody away from her if the parents were never married. It is also unlikely that a court would award a father sole custody in this situation.
Regardless of gender, courts are usually suspicious of the motives of any parent who petitions for sole custody. Excluding the other parent from a child’s life is a drastic measure. If you're a father seeking sole custody, consult with or hire an attorney to help you prove that harm would come to your child if he lives with his mother. In 1997, in the case of Watson v. Poole, a court in South Carolina indicated that a parent's unsubstantiated and persistent false accusations of the unfitness of the child's other parent was a basis for changing custody.