The Tender Years Doctrine

The Tender Years Doctrine is a legal doctrine in child custody cases which has existed in Family Law since the late 19th century. The doctrine presumes that during a child's tender years (generally regarded as the of age thirteen and under), the custody of the child should be that of the mother's. This doctrine is applicable in divorce proceedings, but has been replaced on the books in by most states by the "Best Interests of the Children" doctrine of child custody. Several courts have held that the Tender Years Doctrine violates the Equal Protection Clause in the Fourteenth Amendment of the U.S. Constitution.

Critics of the family court system, and in particular father's rights groups, contend that although the Tender Years Doctrine has formally been replaced by the Best Interests of the Children doctrine, the Tender Years Doctrine is still the means by which child custody is primarily determined in family courts nationwide. Statistics such as those from the U.S. Census Bureau indicate that family courts still demonstrate an overwhelming preference to place children of divorce in the custody of their mothers. Critics maintain that the father must prove the mother to be an unfit parent before he is awarded primary custody, while the mother need not prove the father unfit in order to win custody herself, a direct violation of the Equal Protection Clause in the Fourteenth Amendment of the U.S. Constitution.

The Rise of Mother Custody

In the days of ancient Rome, fathers had total control over their children; they could sell their children into slavery or even kill them. Mother's rights were virtually nonexistent. In the event of divorce, therefore, child custody was automatically lodged with the father. His right to custody was essentially equivalent to a property right.

In the nineteenth century, courts gradually began to place limits on the father's near-absolute right to custody. Even when a father was not "morally unfit," courts sometimes awarded custody to the mother if her child was still nursing. Increasingly throughout the nineteenth century, young children came to be regarded as having special needs, needs that mothers were better suited to meet. This sentiment prevailed in custody cases and came to be known as the "tender-years presumption." The Talfoud Act of 1839 formalized this presumption by giving courts the authority to award custody of children under seven to the mother. At first, the tender-years presumption was invoked to give mothers temporary custody of infant children. When the children reached the age of four or five, they were returned to the custody of their fathers. This new guideline introduced the idea that the optimal custody arrangement may not be a permanent one, but one that is subject to change over time as the needs of the child change. Unfortunately this new idea was abandoned in the nineteenth century and instead emerged a new stereotype to the replace the old; a wholesale preference for mothers replaced the former preference for fathers.

Over time, the age of "tender years" was extended upward, and eventually the tender-years presumption became the rationale for awarding custody of children of all ages to the mother on a permanent basis. In time, a guideline known as the "best-interests-of-the-child" standard replaced the tender-years presumption. Theoretically, the best-interests standard focuses attention on the needs of the child rather than attributes of the parents but this vague label gives judges a blank check to decide what the best interest of the child is in any particular case. The legacy of the tender-years presumption has continued to influence custody decisions, so that the best-interests standard, despite its literal meaning, has come to be interpreted primarily as a justification for the mother's preferential claim in custody disputes. In most parts of the country, only if the mother is grossly negligent or abusive does the father have a chance of keeping custody. Even then, the cards of the family court system are stacked against him.

In Short

In earlier times, it was assumed that men, by nature, are better suited to protect and provide for children. Since 1920, it has been assumed that women, by nature, are better suited to love and care for children. These assumptions, which so powerfully affect so many children's lives, are based on nothing more than folklore and sexual stereotypes. These generalizations simplify what otherwise would be complex and difficult decisions but the simplest solution is not always the best. When we automatically pigeonhole every child into the same custody arrangement, we lost the opportunity to tailor custody to the needs of the individual family as every family doesn't fit the same mold.

In the last two decades, social scientists have examined different custody arrangements and their effects on children's development. If this information is ignored, and we continue to allow myth and sentiment to rule custody decisions, we short-change our children and we short-change ourselves.

The Custody Revolution: The Father Factor and the Motherhood Mystique, by Richard A. Warshak, Ph.D.