Reports indicate that fathers are gaining ground in custody disputes, and this seems to be true, but Mississippi still presumes a mother is generally better suited to raise a young child under the “tender years doctrine.”

The New York Times reported on November 17, 2009 on a growing phenomenon of fathers “winning”custody cases. They quote an article in Working Mother Magazine called “Lost Custody” about the “new reality of working mothers.” The article states that there are an estimated 2.2 million women in American that do not have primary custody and that 50% of fathers who seek custody in disputed divorces are granted it. The article focuses on the fact that women are working as much as men today, and that has tipped the scales from other eras when women were not working outside the home.

Certainly, the trend of working mothers is taking place in Mississippi as much as anywhere else, and it is my experience that fathers are gaining ground in attempts to secure joint custody, if not primary custody. When people ask me what will happen in a contested custody matter, I usually refer them back to how the parenting has been done before the divorce. If Dad has been a primary care giver or has been equally involved prior to the divorce, this will play a big role in the Court’s decision.

One rule still exists in favor of the Mother and that is the “tender years doctrine.” Under that doctrine, it is presumed that a Mother is better suited to raise young children. The terms “Tender years” and “Young children” have not been specifically defined, but we do have precedent that a child of seven years is past the age where the presumption applies. Mayfield v. Mayfield, 956 So. 2d 337 (Miss. Ct. App. 2007). See: Benal v. Benal, NO. 2008-CA-01181-COA (Decided November 17, 2009) (holding that the tender years doctrine did not apply to a child 8 years of age). All in all, the role that parents actually played prior to divorce is the most significant indicator in this practitioner’s mind.
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