Today, no state automatically requires that a child be awarded to the mother without regard to the fitness of both parents. As recently as 1990, according to the National Center for Health Statistics, courts awarded mothers custody in approximately 72 percent of divorces, but now in most jurisdictions courts are prohibited from awarding custody based on gender alone because the so-called “Tender Years Presumption” has either been rejected entirely or relegated to the role of tie-breaker.
In the past, most states provided that custody of children of “tender years” (about five and under) had to be awarded to the mother when parents divorced. Most states require their courts to determine custody on the basis of the children’s best interests and without regard to the parent’s gender.
As it turns out, however, many divorcing parents agree that the mother receives custody and that the father exercise reasonable visitation. Parents often agree that “the mother has more time, a greater inclination, or a better understanding of the children’s daily needs.” The court evaluates the circumstances and determines the child’s best interest. The court considers which parent is the primary caregiver, income levels and a parent’s career path.