The South Carolina family courts have traditionally followed what is known as the “Tender Years Doctrine” when it comes to primary custodial placement of a child in the event of separation and/or divorce. The Tender Years Doctrine is a legal doctrine in child custody cases that presumes that during a child’s tender years (i.e. children of the age 13 and under), the custody of that child should be with the mother. This doctrine has historically been overwhelmingly followed by the family courts without further thought given to the individual circumstances in a custody case. The Tender Years Doctrine is arguably unfair, but somewhat understandable in a historical context where fathers went out and worked while mothers were largely at home. But as our legal system evolves to catch up with the times, the Tender Years Doctrine has been replaced in most states by the “Best Interests of the Child” doctrine of child custody. Where a father’s involvement was frequently reduced to a weekly child support payment and visitation every other weekend, the family courts are now taking a comprehensive approach in determining whether joint custody or even sole legal custody to the father, is appropriate where the best interests of the child are concerned.
Shift in Gender Roles
This gender shift in family law judgments and awards is seen not only in child custody awards but also in alimony awards. The father and husband is often no longer the sole breadwinner, and wives are rarely dependent on their husbands for income; therefore consistently awarding alimony and child support to the wife and mother is no longer the norm. Traditional roles have been abandoned and a modern model of gender-neutral interdependence between spouses has been adopted.
Beginning in the 1970s, the family courts started to move away from the traditional gender assumptions and began utilizing gender-neutral interdependence between spouses when making alimony and child support awards. Mothers and fathers often times both worked to support the family, share assets, and most importantly share child-rearing and household responsibilities. An award of joint custody became more common in order to maintain this culture of interdependence and sharing of responsibilities.
The evidence of gender equality in the realm of family law and other areas of practice is an accomplishment and a great demonstration that the law is a living thing that can evolve and adapt to our changing society. However, there are consequences to this gender shift. With the increase in female professionals in our society, where more wives and mothers are becoming the main breadwinners in the family, not all women celebrate the consequence of having to pay spousal support and child support to their ex-husbands.
The divorce rate in the United States consistently hangs around the fifty percent mark, and so the notable shift in how the family courts award custody, child support, and alimony in a divorce proceeding is always relevant. Mothers can no longer assume they will be awarded sole custody of their children, as parenting is undoubtedly a joint venture these days and the best interests of the child will always win over the traditional notion that children only need their mothers during their formative years.
Contact a Mount Pleasant Family Law Attorney
Of course, determinations regarding child custody can be more easily navigated with experienced counsel. If you and your spouse are contemplating separation or divorce, it is critical that you explore your options with a Mount Pleasant Family Law attorney that knows the law. Please contact Klok Law Firm LLC today to discuss your case.
