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Child custody

tender years doctrine

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 Texas, the tender years doctrine, which favored mothers in child custody cases, is no longer a legal standard. Texas courts now focus on the best interest of the child when making custody decisions, as outlined in the Texas Family Code. This shift away from the tender years doctrine reflects a more modern understanding that both parents play a vital role in a child's life. Custody decisions in Texas are based on a variety of factors, including but not limited to: the child's desires, the emotional and physical needs of the child now and in the future, any emotional and physical danger to the child, the parental abilities of the individuals seeking custody, the programs available to assist these individuals, the plans for the child by these individuals, the stability of the home, acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one, and any excuse for the acts or omissions of the parent. While the court may consider the involvement of the parent who has been the primary caregiver, Texas does not automatically give preference to the parent who has not been working outside the home. Instead, the court aims to establish a custody arrangement that serves the best interest of the child, which may include joint managing conservatorship (shared custody) or designating one parent as the primary conservator (primary custodian) based on the circumstances of the case.

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