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 Wisconsin, the tender years doctrine, which historically favored mothers in child custody cases, is no longer a legal standard. Instead, Wisconsin courts focus on the best interest of the child when making custody determinations, as outlined in Wisconsin Statutes Section 767.41. This approach considers various factors without an automatic preference for one parent based on gender. Factors that may influence custody decisions include each parent's relationship with the child, the child's adjustment to home, school, and community, and the time each parent has spent with the child in the past. While the court may consider the involvement of a parent who has been the primary caregiver, this is just one of many factors evaluated. The state encourages joint legal custody, allowing both parents to make important decisions regarding their children's lives, and seeks to enable a child to have regularly occurring and meaningful periods of physical placement with each parent, unless it would harm the child's best interest.