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‘Tender years’ doctrine no longer recognized under Virginia law

In what was known as the “tender years” doctrine, it used to be presumed that most mothers should be the primary caretaker of their child, especially if the child was young. So, when parents divorced, oftentimes the mother was awarded primary custody, and the father was only awarded visitation. However, times have changed, and it is now recognized that fathers also play an important role in a child’s life.

Thus, under Virginia Code, when it comes to making child custody decisions, the primary standard used by Virginia courts is the best interests of the child. This means that there is no legal presumption that either the mother or the father is best suited to have primary custody of the child. In addition, there is no legal presumption that joint custody is better than sole custody or vice versa.

Instead, the court will aim to make sure that the child is able to have frequent and continuing contact with each of his or her parents, absent abuse or other instances when such contact would be inappropriate. The court will also aim to have each of the child’s parents share the responsibility of raising the child.

So, when it comes to determining legal custody and physical custody of a child in Virginia, the presumption that the mother should always be considered the parent most fit to have custody, especially if the child is young, is gone. Courts are recognizing that fathers play an integral role in a child’s life. Thus, it is important that, even if a child’s parents are no longer in a relationship with one another, the child can maintain a meaningful relationship with each of them.

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