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 Virginia, the tender years doctrine, which historically favored mothers in child custody cases, is no longer a legal standard. Today, Virginia courts focus on the best interests of the child when making custody determinations, as outlined in Virginia Code § 20-124.3. This statute lists specific factors for the court to consider, such as the age and physical and mental condition of the child, the age and physical and mental condition of each parent, the relationship existing between each parent and each child, the needs of the child, the role that each parent has played and will play in the future, the propensity of each parent to support the child's contact with the other parent, and the willingness and ability of each parent to maintain a close and continuing relationship with the child. While the court may consider the amount of time a parent has spent with the child in the past, this is just one of many factors, and there is no automatic preference for the parent who has been the primary caregiver. Shared custody arrangements are common, but the court's primary concern is always the child's best interests, which can sometimes result in one parent being named the primary custodian.