The Legal Issues 151
reach their own stipulated agreement allocating custodial rights,
then the court will (once again) step in and make that decision for
them. The court will always base its decision on what it deems to
be the “best interests of the child.” In order to reach a fair deci-
sion, the court will often appoint a social worker, psychologist,
investigator, or even a separate attorney to serve as guardian ad
litem on behalf of the child. They will in turn examine the situa-
tion and report the findings back to the court. In many states, the
court will also require the parents to attend some sort of concilia-
tion or mediation session, and/or parenting educational classes.
Judges may also ask for a custody evaluation, including on-site
visits to each parent’s home. Finally, a custody hearing will be
held that could include reports from the various expert witnesses
as well as testimony from each of the parents.
Factors that historically influenced custody determinations. In the
old days, custody generally would be awarded somewhat auto-
matically to moms. In fact, a legal principle called “the tender
years doctrine” generally prevailed. This held that, especially for
very young children, the primary bonding was presumed to be
between young kids and their mothers. While it was recognized
that this might be somewhat less true for older children, custody
of young children was almost always granted to mothers.
Nowadays, custody has by statute become gender neutral.
This means that, at least theoretically, dads now have every bit
as much chance as moms of getting custody. In fact, the same
national studies appear to indicate that in those 10 percent of
cases where custody is actually disputed in court, fathers have an
excellent chance of being awarded custody. This can also make
for more custody battles since parents now technically start out
dead even in a custody battle. In a contested custody trial, the
judge, the social workers, and the child psychologists will all try
to make a determination as to what will be in the best interest
of the child, and one parent will be granted custody. The court
will rarely force a joint physical custody result in a contested trial
(although it will almost always approve that result when reached
via a stipulated agreement). Oftentimes both parties can make an
excellent claim to being good parents, and it’s a very tough judg-
ment call as to which one is truly the better parent.