As a Dallas divorce lawyer, I am often asked whether court’s still presume that custody of a child should go to the mother as opposed to the father. The short answer is no. Courts are not permitted to consider the gender of the parent (or the child) in making decisions regarding custody. Generally the best interests of the child are the primary considerations the court assesses in determining custody issues. The best interests of the child are frequently referred to as the Holley factors because of the case they were set forth in. See Holley v. Adams, 544 S.W.2d 367, 371-71 (Tex. 1976). Since 1976 the best interest factors have been divided up into three broad factors: (1) the ability of the either parent to care for the child; (2) the ability to maintain a family relationship; and (3) parental fitness.
Historically, gender played a role in assessing parental fitness. This role led to the development of the "tender years doctrine" which in essence stated a child should not be separated from his or her mother. Early records of the tender years doctrine date back to the mid 1800’s and needless to say there have been dramatic shifts in socio-political viewpoints since that time. 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.
This shift away from the tender years doctrine coincides with the shift towards parents sharing their rights and duties equally. In fact, there is a possession schedule set forth in the Texas Family Code that applies in most cases (in the absence of a showing why it should not) which effectively gives parents equal rights, duties and almost possession periods of their children.
Despite the shift away from the mommy presumption, there are some judges who retain an "old school" mentality and still believe that the child should remain with his or her mother. This is where hiring an experienced divorce attorney is critical, because if your case happens to land in a conservative judge’s court, then your attorney will have to clear the mommy presumption hurdle.
In short, the tender years doctrine has been, for the most part, put to bed in Texas courts. However, it still pays to know the judge’s preferences your case is assigned to.