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RobertJDFL, Lawyer
Category: Family Law
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i read this online in a 101 things you need to know about divorce

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i read this online in a 101 things you need to know about divorce stuff in california. :

92.Mothers are not inherently more likely to get custody of a child than fathers, even when the child is very young (the courts used to call this a child of "tender years"). Courts in the past have favored mothers over fathers, but this is no longer the case.

Is this true also in the state of Texas?
Thank you for your question.

It is indeed. This is true not only of California, but I am not aware of any state that I have looked into that has not abandoned the idea of mothers automatically getting custody as well as the "tender years" doctrine. The emphasis today in family court is "best interest of the child." So, the courts are going to look at a number of issues when deciding custody- who is the primary caregiver of the child, which parent is more capable of supporting the child, the emotional and mental health of the child, the relationship of the child to each parent, etc. Ideally, the court would a child to have one "primary" residence, with the other parent having frequent and liberal access.

That said, many mothers are still the primary caregivers of children, taking on most of the child care duties. This is especially true when children are younger where some fathers will not take as active a role. Therefore, I would say more mothers than fathers still end up as the primary parent, but the law today is "best interest of the child."
Customer: replied 3 years ago.

the reason i ask is bec my friend is going thru a divorce and his attorney told him that the law in texas says that all children under 3yrs old, in texas automatically go to the mother when a divorce is filed. his son is 2yrs 4 months now. is this true?

AUtomatically? No. Either your friend misunderstood, or that lawyer is unfamiliar with the law. There is no "tender years" doctrine in Texas. Courts follow the "best interest of the child" standard. The trend towards moving away from the mommy presumption and tender years doctrine gradually made its way in to Texas Case law and eventually was codified in the Texas Family Code. According to Section 153.003 of the Texas Family Code, the court cannot consider the marital status or gender of either parent in making decisions regarding custody.

There are some judges who retain an “old school” mentality and still believe that the child should remain with his or her mother -and your friend's lawyer may have meant that judges in the area where your friend is filing for divorce tend to follow such a trend. But it is not the law in Texas.
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