The History of Moms and Child Custody Laws
The subject of whether moms have some advantage in child custody cases is a much-debated topic among family law attorneys, as well as the parents who later become clients in child custody battles. The U.S. Census Bureau records indicate that only about 17% (1 in 6) of the custodial parents are fathers.[1] Why does that happen? There isn’t a simple answer. But a brief history of the child custody laws in North Carolina gives us a context, telling us how we got here in the first place.
Where It All Began: Tender Years Doctrine
Imported from England, our courts used what was called the “Tender Years Doctrine” in child custody cases. It was a built-in default rule called a legal presumption, meaning the mother was always presumed to be the most appropriate parent to have custody unless there was a reason justifying otherwise. The NC Supreme Court in 1973[2] defined it as follows:
“It is universally recognized that the mother is the natural custodian of her young. . . If she is a fit and proper person to have the custody of the children, other things being equal, the mother should be given their custody, in order, that the children . . . may have the advantage and benefit of a mother’s love and devotion for which there is no substitute. A mother’s care and influence is regarded as particularly important for children of tender age and girls of even more mature years.”
Marital Status
Marital status between the parents did (and still does) matter. Historically, an unmarried mother had exclusive sole custody, including whether to place a child for adoption. If an unmarried mother decided to place the child for adoption, the father generally had no rights because there was no “legal father.” Although that is not currently the law in adoption cases, there are still significant differences between the rights and obligations of married fathers and unmarried fathers. Current adoption laws for unmarried fathers remain controversial among those in the legal profession. An excellent discussion of this topic is found in Rosero v. Blake.[3]
Where Did the Tender Years Doctrine Lead?
In 1977, the state abolished the Tender Years Doctrine by statute.[4] Instead of defining custody as a right exercised by one parent over another, the new statute required judges to rule based strictly on what is in the best interest of a child. This removed the default rule favoring mothers, and it holds true today. However, as recently as 2006, the NC Court of Appeals overturned a lower court ruling because the following language in a court order was deemed to be the Tender Years Doctrine: “the Court takes judicial, personal notice of the natural bond that develops between infants and a mother, especially when the mother breast-feeds the infant.”[5]
Where Are We Now?
The “best interest of the child” law remains. It currently states that “there is no presumption as to who will . . . better promote the interest and welfare of the child.” It also requires the court to consider joint custody if either parent requests it.[6] In 2015, the North Carolina Legislature added a brand new statute to the existing ones, An Act to Promote the Encouragement of Parenting Time with Children by Both Parents.[7] Although it isn’t very specific, it clarifies the state policy and ideals and values to which judges should aspire in our state. The first ideal is to: “Encourage . . . court practices that reflect the active and ongoing participation of both parents in the child’s life and contact with both parents . . .” The other ideal is to encourage “both parents to share equitably in the rights and responsibilities of raising their child . . .”
[1] Custodial Mothers and Fathers and Their Child Support: 2013, By Timothy Grall. Current Population Reports. U.S. Dep’t of Commerce Economics and Statistics Admin. U.S. Census Bureau.
[2] Spence v. Durham, 283 NC 671 (1973) citing Nelson, Divorce and Annulment.
[3] Rosero v. Blake, 357 NC 193 (2003).
[4] N.C. Gen. Stat. §50-13.2
[5] Greer v. Greer, 175 N.C. App. 464 (2006).
[6] N.C. Gen. Stat. §50-13.2
[7] N.C. Gen. Stat. §50-13.01
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