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Axelrod & Associates, P.A.

Once upon a time, mothers always got custody of the children when parents divorced. This was certainly a cultural artifact, but it also had a solid place in legal theory.

According to the “tender years doctrine,” it is in the best interest of children who cannot live with both parents to live with their mothers. This legal principle arose in Britain during the 1800s and spread to the United States and many other nations.

As gender roles changed significantly during the latter half of the 20th century, the doctrine was abandoned in the United States and most of Europe. South Carolina lawmakers abolished the tender year’s doctrine in 2012, but the attitudes of some judges do not change as quickly as the law.

Family court judges have a lot of discretion when deciding child custody. In South Carolina, judges consider what they think to be in the best interest of the child, so a judge who buys into old-fashioned ideas (and South Carolina certainly has a few of those) might be influenced by the ideas behind the tender year’s doctrine, even if the legal principle has been officially abandoned.

For fathers involved in a child custody dispute, this means the deck is often stacked against you. Let’s look at some ways you can level the playing field and possibly even gain an advantage…


Children fare best after a divorce when they have ample time with both parents. That said, you, as a father, have just as much right to request custody of your children as their mother does. The following list includes useful points that may help you determine the best course of action:

  • You do not have to sit back and let your ex or others decide what is best for your children. You can play an active role in protecting their best interests.
  • You can file a petition to request shared or sole custody of your children. If you ask for the latter, you will need to prove why the other parent should not have custody.
  • You do not have to fight your battles alone. The divorce and child custody attorneys at Axelrod and Associates know South Carolina child custody laws and know how to protect your rights as a father.
  • If your former spouse tries to get you to agree to less time with your kids, you do not have to comply – insist on being present in your child’s life.

It is definitely possible for fathers to obtain custody of their children. If your former spouse’s presence is harmful to your children, for example when substance abuse or physical abuse is an issue, you can bring the matter to the court’s immediate attention. You do not need not settle for less because you are a father, and you can still protect your children after a divorce.

Separation Agreements Should Include Custody Arrangements

It is almost always a good idea to try to negotiate a parenting agreement with your soon-to-be ex. For one thing, you can save money when issues are not litigated in court. But also, both you and your spouse are more likely to be happy with the arrangement if you agree to it instead of having a court force it on you.

Of course, the other parent is not always going to agree to let you have custody of the children. What can you do to maximize your chances of having the court award custody to you?

Challenge the Stereotypes

Take an active role in your child’s life – and make sure others see it. When you can, pick them up from school, attend meetings with their teachers, take them to soccer practice, and accompany them to medical appointments.

Make sure that if anyone asks their teachers, coaches, doctors, or friends’ parents about your involvement, they will truthfully respond, “He is very involved, always around.”

And ask them yourself – you should collect references in the form of affidavits. In addition to the adults who are involved in your child’s life, you can ask your friends, relatives, boss, coworkers, and other associates to write affidavits detailing why they like and trust you and why you are a fantastic father.

The goal here is to make sure the judge knows that you’re not the only one who thinks you deserve custody.

Money Talks

In the US, men make more money than women for doing the same job. It’s unfair. But that’s not your fault.

You may be able to use this social injustice to your advantage in a custody dispute – assuming you make more money than your spouse. Make sure the court knows that you have more income, your home is economically stable, and therefore you can provide a higher standard of living for the child.


Now, what should you not do when you are involved in a custody battle?

  • Don’t yell at your spouse – even if they yell at you. You never know when you are being recorded, and many judges will find a man shouting to be more menacing than the same behavior from a woman.
  • In fact, don’t even criticize your spouse, to her face or behind her back. Anything you say can eventually get back to the judge, who could decide that your open criticism of your spouse puts undue stress on the child.
  • Don’t use illegal drugs or drink excessively – courts will often drug test a parent when the other parent requests it, and substance issues will weigh very heavily against you getting custody of the children.
  • Don’t engage in any illegal conduct – if you are arrested, or if there is testimony or affidavits detailing criminal behavior on your part, you will be much less likely to get custody of your children.
  • Don’t date or have overnight guests in the presence of the children – the court will be concerned with the example that you are setting for the children and whether your dating habits places the children in danger or causes them stress.


Obviously, the answer will be different for each case, based on the evidence that your attorney presents to the court. If you are a mother seeking custody of your children, all the above applies equally to you…

You may also be concerned about your parental rights, especially because you’re a father. Long ago, many people automatically assumed that mothers should have full custody of their children in divorce. Nowadays, that’s not the case.

Being a father should not be a disadvantage in your parenting plan. You have the same legal rights to custody as a mother does. Before heading to court, it helps to learn more about South Carolina custody laws and to know where to look for help if a problem arises.


Although the “tender years doctrine” has been abolished, old habits die hard and fathers still have an uphill battle when they want to get custody of their children. If you are considering divorce or if you need help getting custody of your children, call Axelrod and Associates now at 843-353-3449 or fill out this form to find out how we can help.

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