Do mothers have the upper hand in custody decisions?

When the parties in a divorce action have one or more minor children, custody and visitation can quickly become a contested issue.  With the abolishment of the Tender Years Doctrine in 1994, the preference for awarding custody to the mother was eliminated.  Therefore, fathers have an equal chance at being awarded full or primary custody of their children in a divorce.

In making a custody determination, the deciding factor for the South Carolina family courts is what is in the best interest of the child. This includes an inquiry into the stability of both parents’ proposed residences, the child’s relationships with the parents and/or other family members, as well as who has been the primary caregiver to the child throughout the course of the marriage. In this analysis, courts focus on which parent has historically been the “nurturing” parent and taken on key responsibilities like bathing and dressing the child, taking the child to school and/or daycare, participating in extracurricular activities, helping with homework, taking the child to medical and dentist appointments, etc.

South Carolina courts prefer to award custody to the primary caregiver, as a presumption exists that such an award is in the best interest of the child. Therefore, the analysis is gender-neutral, and fathers—just like mothers—can walk away from a divorce with custody of their children.     Blog post by Tatyana Ustimchuk. Read more about Tatyana here.

Tatyana S. Ustimchuk
Attorney Tatyana S. Ustimchuk

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