Little girl resting her head on her father's shoulder

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Ask Carolyn: Will My Daughter’s Age Keep Me from Getting Custody?

Carolyn Woodruff, J.D., C.P.A, C.V.A.

Dear Carolyn,

I have a two year old daughter and the mother and I are facing a custody trial. The mother, in my opinion, has some mental disorders and has been treated for long-term depression. The mother breast fed, and mother and daughter are close.  I feel, however, that I am the better custodial parent.  Will the daughter’s age and sex keep me from being a custodial parent until she is older? Will the court listen to me, or am I just out of luck until my daughter is older?

– Dad

Dear Dad,

What you are really asking is whether the court and the law are prejudiced by the young, tender age of your daughter. Also, perhaps you are asking whether there will be probable prejudice because you are a male and your daughter is a young female. Further, does the breast feeding give Mom an edge over you?

Luckily, you are asking these questions in 2015 when the “Tender Years” Doctrine has been eliminated by the North Carolina legislature. North Carolina General Statute Section 50-13.2 eliminates any and all presumptions in favor of the Mother or the Father. The statute further makes the standard for the court awarding custody as the best interests of the child, assuming both parents are fit and proper persons.

You will want to arm yourself with the case of Greer vs. Greer, 175 NC App 464 (2006).  In Greer, the custody trial court in Lenoir, awarded the Mother custody in a case very similar to yours on the theory that there was a natural bond between an infant and the Mother when the Mother breast feeds.  The North Carolina Court of Appeals reversed the Lenoir court reminding the Lenoir court of the abolition of the “Tender Years” Doctrine. While the “Tender Years” Doctrine was actually eliminated in 1977, one can see clearly that the Doctrine was still influencing at least one judge in this decade.

In your case, you may want to argue that the Mother’s depression makes you the better selection of the court as a primary care parent.


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Note that the answers in “Ask Carolyn” are intended to provide general legal information, and the answers are not specific legal advice for your situation.  The column also uses hypothetical questions.  A subtle fact in your unique case may determine the legal advice you need in your unique case.  Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by “Ask Carolyn.”

This blog is revised from a previous column published in the Rhino Times.