Many clients incorrectly assume that mothers are favored over fathers in a custody case. The truth is that the “tender years doctrine,” has been abolished in all fifty states as it violates constitutional law. This doctrine, which is what many clients are relying on when assuming that a mother may be favored over a father, stated that young children should be placed with their mother unless she was unfit. Since the abolishment of this doctrine in Maryland, neither parent is given preference for custody based on exclusively their gender.
In Maryland, the standard that is used when determining custody of a child is the “best interest standard.” This is a standard in which Judges consider a number of factors such as the parents fitness, relationship of child and parents, children’s current environment, ability to maintain natural family relationships, who has been the primary care giver, wishes of child in some circumstances, any agreement the parents have made, prior abandonment of a child by a parent, the age and health of the child, and many, many other factors to determine what custody arrangement would be in the best interest of the child.
I have been on both sides of a custody battle, having represented both Mom's and Dad's and have prevailed in obtaining custody for both genders. Every case is different and has its own nuances, but I am of the opinion, that assuming both parents are fit and absent some extraordinary circumstance such as mental illness, physical /mental abuse, abandonement, and/or manipluation, Courts generally focus on who has been the primary care giver (oftentimes the responsibilities have been shared), stability of the parents and their living situationas and environment, parental and other familial involvement, the ability of each parent to work and communicate with the other like adults on child related issues, and the availability of each parent for the child(ren). Obviously, this is a generalization and each case is different, but I believe those factors hold considerable weight with most Judges. Oftentimes judicial custody determinations will hinge on one particular issue because the parties are otherwise relatively on the same playing field in the other factors. Rest assured however, the tender years doctrine has been abolished and Mothers and Fathers stand on equal legal footing as far as gender is concerned.