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No Gender Preference for Custody

Many parents who are considering custody litigation inquire as to whether Moms automatically get custody. It is true that Moms used to be the preferred custodians for minor children during the early twentieth century. There was a shared misconception that moms would be the better parents based on their natural nurturing instincts. This was especially true of young children or children of "tender years." In fact, a legal principle termed the "tender years doctrine" called for mothers to have custody of children until they were at least approaching their teenage years.

Presently, there are no remaining custody laws that give preference to one parent over the other based solely on gender. The Supreme Court of the United States found that the tender years doctrine was a violation of the Fourteenth Amendment of the Constitution, providing for equal protection for all, since it impermissibly discriminated against men based on their gender.

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Nearly all states now do an analysis based on the best interests of the child. Pennsylvania's statute discussing the factors to be considered under a best interests analysis is 23 Pa. C.S. 5328. Key considerations include who has been primary caretaker of the child, need for continuity and stability, and availability of the parents or ability to provide appropriate childcare. So whether you are a mom or dad, your opportunity to receive custody is the same. It is important to become familiar with the relevant factors in a custody decision and determine which factors weigh in your favor in order to present a winning argument for custody.

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