within society, the courts must take the first step. Just as the courts have ingrained in society with
the Tender Years Doctrine that fathers are inferior parents, 169 the courts must take the initiative
to prove the presumption it spread170 – and arguably continues to perpetuate171 – throughout the
nation is unfounded. If the courts take the lead and more actively disprove the public notion of
this gender-bias rather than prolong it, 172 the children at the mercy of the legal system will have
their best interests served more genuinely. Such a change would reignite the passion of fathers to
fight for their children on a more level playing field, without the fear of investing time, energy,
and money into a system that favors their adversary. 173 This ability of fathers to be on a level
playing field with mothers would ensure that the court’s custody evaluation would most
adequately serve the best interest of the children involved.
Another argument critics of sole custody reiterate may be that the arrangement is grossly
unfair to the parent who is not awarded the majority of custody. 174 However, the fairness
between the parents should not precede the best interest of the child under any circumstance. 175
The court should determine what arrangement would truly be in the child’s best interest. A child
is not an asset to be apportioned similarly between parties as property – nor should the court treat
the child as such. 176
169 See ELROD, supra note 12, at § 1: 9
170 Hughes, supra note 19; see SEXTON, supra note 16, at 781-92; see Freeland, 159 P. at 699.
171 ABRAMS, supra note 9, at 686; Weitzman & Dixon, supra note 91, at 271-273; see Hardcastle, supra note 107, at
174 Jo-Ellen Paradise, The Disparity Between Men and Women in Custody Disputes: Is Joint Custody the Answer to
Everyone’s Problems?, 72 ST. JOHN’S L.Rev. 517, 568 (1998); Hardcastle, supra note 107, at 205.