A very common misconception regarding child custody stems from a real legal doctrine that was recognized by courts in the not-so-distant past: the tender years presumption. Under this judicial doctrine, a child of a "tender age" - typically, seven years old or younger - is presumed to need to stay in the custody of his or her mother, who is presumed to be the most fit parent to raise such an impressionable young child. Since 1994, there are no longer any states in the nation who recognize the tender years presumption; however, most states have replaced this standard with the primary caretaker presumption. The primary caretaker presumption relies on the assumption that whichever parent has been the primary caretaker before the divorce should be awarded custody of the child. This standard is presumed to be in accordance with the child's best interest, as a custody award to a non-caretaker could be disruptive for the child. Child custody presumptions are favored by states as a preliminary method of informing parties about the likely outcome of the case, as the presumptions are only applied by the court when the custody battle is between two equally fit parents.
Seemingly, the primary caretaker standard feeds into the common misbelief that women are always awarded custody of their child over their deserving husbands' protests. However, according to a recent study published in Working Mother Magazine, the custodial trend is shifting. In this difficult economy, men are experiencing a higher rate of layoffs - and subsequently, an increase in time spent as the primary child caregiver. Perhaps surprisingly, this study showed that fathers are awarded custody in court at least 50% of the time, a statistic that has doubled over the past decade. Although these statistics are certainly indicative of a much-needed increase in equality in custody determinations, the equally as fit parent who is not awarded custody of his or her child may wonder if the benefit of being the primary breadwinner outweighs the potential risk of losing primary custody.
Whether it comes as the result of shifting social views regarding equal parenting, or as the direct effect of an ill economy, we can certainly expect to see a continual increase in the number of men who are awarded primary or joint custody of their children.
Working Moms Losing Custody: A Trend?:
More Fathers are Getting Custody in Divorce: