States Are Making Shared Custody the Default—Could This Be the Arrangement We've Been Waiting For?

By Natalie Gontcharova
Published on October 11, 2022

Shana Swain is one of many single moms who is doing more than, at times, seems possible. She separated from the father of her two daughters Zuri, 10, and Amara, 7, when she was pregnant with Amara. The couple was never married, but at that point they had lived together for a decade. Although Swain, now 42, has attempted to share parenting time with her ex, she says they never made any sort of on-paper arrangement except a brief string of child support payments. Her ex has not shown interest in a legal arrangement and their home state of South Carolina has a law that grants custody of the children of unmarried parents to the mother unless family court says otherwise. Their custody arrangement was decided for them.

It would be a game-changer, she says, if her daughters had another parent she could juggle logistics with. Instead, she recalls that her ex's stance on parenting is that the mother should be in charge until the kids are older.

Swain's ex is essentially espousing the tender years doctrine, which guided custody decisions for more than a century, based on the idea that women are natural caregivers. In the 1960s and '70s, the doctrine fell by the wayside as more women joined the workforce and no-fault divorce laws became standard. Custody rulings began to default to a "best interest of the child" standard, which is based on a variety of factors, including the child's age, both parents' financial stability, and any history of domestic abuse.

But in practice, more than three-quarters of custodial single parents are mothers. Research shows that while this can be in the best interest of children and parents, it isn't always. In fact, gender bias in the family courts system is often failing families—and many advocates say it's time to consider how a 50-50 custody default could be best.