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 West Virginia, the tender years doctrine, which historically favored mothers in child custody cases, is no longer a prevailing legal standard. Instead, West Virginia courts focus on the best interests of the child when making custody determinations. This approach is codified in West Virginia Code §48-9-102, which outlines factors the court must consider in determining the child's best interests. These factors include, but are not limited to, the child's age, the child's relationship with each parent, each parent's involvement in the child's life, and the ability of each parent to provide for the child's needs. While the courts recognize the importance of both parents in a child's life, they may indeed consider the amount of time a parent has historically spent with the child, which could influence who is awarded primary custody. However, this is just one of many factors considered, and no automatic preference is given to the parent who has been the primary caregiver or who has not been working outside the home. Shared parenting arrangements are encouraged when feasible and in the child's best interests.