The Tender Years Doctrine is Officially Dead, But…

Many years ago, there was a rule known as the “Tender Years Doctrine,” by which the court presumed that the mother was the best person to be awarded custody of a young child. The theory was that young children, in their tender years, would best be cared for by their biological mothers. The tender years doctrine has been outlawed throughout the country now. In most cases, it has been declared unconstitutional because it favors women and is therefore discriminatory on the basis of gender.

But is it truly dead yet? Do all family courts treat fathers and mothers equally? Or do some judges assume that the mother is more capable to serve as primary custodial parent of infants and toddlers? Even though the tender years doctrine has now been relegated to legal history books, many parents believe that judges still silently follow it, especially in more conservative, old-fashioned states and counties. Why? Is this because women often seem to handle child-rearing responsibilities more naturally? Is this about breast-feeding? Is it because, in customary families, the mother is more likely to stay at home after childbirth while the husband returns to work? Virtually all of these reasons have been officially rejected, but in some cases, in some places, there is surely a perception that a judge may be relying on one or more of these reasons to presume the mother as the best choice for custody.

If you’re involved in a custody case in a family court in which you believe the tender years doctrine is silently in effect, be mindful of this situation. If you are a father, you need to isolate the specific reasons for the judge’s position, challenge any reliance on the tender years presumption, and counter-attack any of the perceived advantages that the mother has (for example, be prepared to demonstrate how naturally and effectively you can provide care, support, and guidance to young children). If you’re a mother enjoying the benefits of this situation, be wary of the fact that your legal edge may be based on a shaky foundation, and that ultimately, all children grow beyond their tender years.

If you’ve had personal experiences with this situation, or if you’ve observed a maternal preference given by a family court judge, please share your stories.

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