Fathers of young children were historically at a disadvantage in seeking custody of their children due to tender years doctrine—a theory courts adopted in the belief that children had a greater need for the love and care of their mothers during their tender years. Under the tender years doctrine, custody of young children was automatically given to the mother unless there were unusual circumstances. Today, courts more often recognize the important role both parents play in the lives of young children, and usually order some form of shared custody arrangement. But there are factors the court may consider that sometimes favor one parent over the other in determining who will be the primary custodian of the children—such as giving preference to a parent who has not been working outside the home, and has therefore been spending more time taking care of the children’s daily needs.

In North Dakota, the tender years doctrine, which historically favored mothers in child custody cases, is no longer a legal standard. Instead, North Dakota courts focus on the best interests of the child when making custody determinations, as outlined in North Dakota Century Code (NDCC) Section 14-09-06.2. This statute requires courts to consider a variety of factors without preference to the parent's gender. These factors include the love, affection, and other emotional ties between the parents and child, the child's adjustment to home, school, and community, and the length of time the child has lived in a stable, satisfactory environment. While the courts recognize the importance of both parents in a child's life and often favor shared custody arrangements, they may still consider who has been the primary caregiver. If one parent has been more present in the child's daily life due to not working outside the home, this could influence the court's decision on who will be the primary custodian. However, this is just one of many factors considered in the context of the child's overall best interests.