discrimination against a parent's gender? That being said, isn't that highly unlawful
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Education Law Attorney
It's absolutely not. In fact, in South Carolina there is no longer a presumption in favor of a mother, or the tender years doctrine -- which is what I assume you're referencing. However, a family court judge may show preference for the primary caretaker when making custody determinations. But in that situation the judge is not discriminating based on gender, but rather he is discriminating between a person who has demonstrated a history of caring for the child and one who has not. Although that is not the only factor, it is one the court may consider. Family courts are courts of equity, so the judge can consider almost any facts and circumstances in rendering a judgment. Therefore, the judge could consider any special circumstances which justified one parent being the primary caretaker over another. The paramount consideration for the family court is always the best interests of the child, however that may be defined after considering the totality of the circumstances.
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Divorce / Separation Lawyer
Maybe a long time ago but today, no, it isn't biased. Every state I'm aware of has long ago tossed the Tender Years Doctrine and Maternal Preference Rule, but of which favored the mother. I practice in a county where our judge is a woman and the magistrates are women and men get custody many times.
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Family Law Attorney
Absolutely not. As noted by Mr. Edwards above, the so-called "Tender Years Doctrine" was done away with in 1995, and case law--I'm thinking of High v. High from 2010, but there may be others--supports the fact that in the Palmetto State, parents stand "in perfect equipoise" at the start of the analysis of custody. (That's a fancy way of saying "equal footing.") However, also as noted above, the courts do lean toward awarding custody to the primary caretaker of the child -- regardless of whether that's mom or dad.
Family law is emotional for clients. There is no way around it. Often times, parties to an action feel as though they shouldn't have to be bothered with the litigation in the first place; I've seen cases where a parent who cooked meth while her three-year-old was present felt as though she had done no wrong. In those cases, when a judge doesn't rule in their favor, folks who already have a total lack of accountability will assume that there has been some home-cookin'.
Custody determinations are not driven by gender, but rather are driven by facts and factors. In all child custody and visitation matters, according to the South Carolina Supreme Court’s holding in Moore v. Moore, the best interest of the child is the primary and controlling consideration of the Court -- again, regardless of gender. Generally, when presented with a question regarding the custody of a minor child, the Court will consider the following factors:
* The welfare of the child and what is in his or her best interest
* The age, health, and gender of the child
* The child’s reasonable preference, if the child is of suitable age and maturity
* The psychological, physical, environmental, spiritual, educational, medical, family, emotional and recreational aspects of each child’s life
* Which parent has historically been the child’s primary caretaker
* The conduct, character, fitness and inclinations of each parent
* The attributes, resources and attitudes of each parent
* The existence of any domestic violence, specifically physical and sexual abuse
* Any immoral conduct of either parent that is detrimental to the welfare of the child
* The religion of the parents and child
* The quality of educational opportunities available to the child
* A parent’s expressed desire to relocate if awarded custody
* Any written agreement of the parties
* The opinions of third parties, including the Guardian ad Litem and expert witnesses
Rarely does any single factor determine the outcome of a child custody dispute, although some single factors–domestic violence or drug abuse–can contribute mightily to the Court’s decision. While it doesn't mean that I could do the same for just anyone, I have had tremendous success for many fathers of young children, and I've been on the other side of cases in which the dad has prevailed.
The thing is, the law does change, and there are new considerations that come up. That's why it's so important to seek counsel. Good luck to you.
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