By Greenville Divorce Attorney

John DeVore Compton, III

What is the “Tender Years Doctrine” and what is its relevance to divorce cases in South Carolina?

A little history will help: Between 1879 to 1948 you could not get a divorce in South Carolina because it was outlawed. With the industrial revolution, and the ability of one spouse to support the family with one income, the husband worked and the wife stayed at home keeping care of the children, among other things. The doctrine was formulated during these years because courts reasoned it was in the best interest of the child to stay with their primary caregiver. The essence of the Tender Years Doctrine was that custody of young children was automatically awarded to the mother.

But times have changed.

The Tender Years Doctrine has been abolished with the development of two working parents, and the recognition that both parents are “natural caregivers” of their children. See the South Carolina Law below:

S.C. Code § 63-5-30:

The mother and father are the joint natural guardians of their minor children and are equally charged with the welfare and education of their minor children and the care and management of the estates of their minor children;  and the mother and father have equal power, rights, and duties, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of the minor or any other matter affecting the minor.  Each parent, whether the custodial or noncustodial parent of the child, has equal access and the same right to obtain all educational records and medical records of their minor children and the right to participate in their children’s school activities unless prohibited by order of the court.  Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to custody of the child.

Until a court rules on the matter, both parents have equal rights to their children. If custody is in dispute, at a Temporary Hearing, the Family Court will place the children (temporarily) with one spouse. A Guardian ad Litem will be appointed. Permanent Custody will be awarded at a final hearing.

Fathers have an equal right to seek custody as mothers (illegitimate children excepted). The process of how seeking custody, the trends today, and the role of a Guardian ad Litem will be discussed in future posts.

Bottom line: for Fathers you have an equal right (and chance) at obtaining custody today because the Tender Years Doctrine no longer exists.

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