Child Custody: Mom Automatically Wins, Right?

It is a common misconception that the mother is automatically entitled to receive custody of the minor children, especially when the children are very young.  The “tender years presumption” is an old factor that used to automatically grant the mother custody of young children because it was assumed that she was the best person to be the primary caretaker of the children.

This presumption is no longer valid.  In fact, South Carolina law has abolished the tender years presumption (S. C. Code §63-15-10).  Now, in order to determine who gets custody of the minor children in a custody battle in South Carolina a judge will consider what is in the “best interest of the children” along with several other factors.

The factors considered in custody cases are:

  1. Resources of the parents
  2. Who has been the primary caretaker
  3. Immoral conduct of the parents
  4. Child’s reasonable preference
  5. Domestic Violence
  6. Relgious faith
  7. A Guardian ad Litem’s report

While there is no tender years presumption any more, that does not mean that the mother will not win custody.  It just means that it is not an automatic decision.  Mothers are winning custody of their children every day in South Carolina.  Basically, in overruling this presumption, the courts are saying that this is not the best resolution in every case so all of the evidence should be considered and what is in the best interest of the children will prevail.

There are a couple of other factors that will not be considered:

  1. No gender bias: that means that a daughter will not automatically be placed with their mother and a son will not automatically be placed with their father.
  2. Race is not a factor in determining who the custodial parent shall be.


  1. Tim Form says:

    Yea, lets see the statistical evidence. The let’s take a look at the judicial procedures and laws applied in the court room. In order for an unbiased approach the following questions must be answered. Do both parents start on an equal footing? Are the requirements for custody skewed in the favor of the division of work responsibilities? Why should natural parenting under marriage be allowed for two fit people and natural parenting under separation or under divorce not be allowed for two fit people? If there is a deficiency, why can’t
    parenting classes make this up? Further, much of the entire
    custody process is highly subjective. Based on selectivity and
    bias, and comes after the fact of producing children. Selectivity of applicable laws. Bias based on gender and division of work responsibilities, among other things. Family Law should stop playing politics with children. 50% of the DNA, then 50% of the custody in ordinary child custody. Which should be the majority of cases. This is natural except when complicated by the court system. This is in the best interest of the child, the child’s parents and child’s families. It is also in line with the US Constitution.

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