The tender years doctrine is a legal principle in

family law Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations. Overview Subjects that commonly fall under a nation's body of family law include: * Marriage ...

since the late 19th century. In

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...

, it presumes that during a child's "tender" years (generally regarded as the age of four and under), the mother should have custody of the child. The doctrine often arises in

divorce Divorce (also known as dissolution of marriage) is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving th ...

proceedings.

History

Historically, English

gave custody of the children to the father after a divorce. Until the 19th century, women had few individual rights and obligations, most derived from their fathers or husbands. In the early nineteenth century,

Caroline Norton Caroline Elizabeth Sarah Norton, Lady Stirling-Maxwell (22 March 1808 – 15 June 1877) was an active English social reformer and author.Perkin, pp. 26–28. She left her husband in 1836, who sued her close friend Lord Melbourne, then the Whig ...

, a prominent social reformer, author, journalist, and society beauty began to campaign for the right of women to have custody of their children. Norton, who had undergone a divorce and been deprived of her children, worked with politicians and eventually was able to convince the British Parliament to enact legislation to protect mothers' rights, with the Custody of Infants Act 1839, which gave some discretion to the judge in a child custody case and established a presumption of maternal custody for children under the age of seven years maintaining the responsibility from financial support to their husbands. In 1873, the Parliament extended the presumption of maternal custody until a child reached sixteen. The doctrine spread in many states of the world because of the

British Empire The British Empire was composed of the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom and its predecessor states. It began with the overseas possessions and trading posts e ...

. By the end of the 20th century, the doctrine was established in most of the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

and

Europe Europe is a large peninsula conventionally considered a continent in its own right because of its great physical size and the weight of its history and traditions. Europe is also considered a Continent#Subcontinents, subcontinent of Eurasia ...

Application

In United States

The tender years doctrine was frequently used in the 20th century but is gradually being replaced by the " best interests of the child" doctrine of custody through changes in state statutes . Furthermore, several courts have held that the tender years doctrine violates the

equal protection clause The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...

of the Fourteenth Amendment to the U.S. Constitution. However, state courts still use the doctrine in many cases, which prompted family court reform similar to criminal justice reform.

In Europe

Most of the states in the EU have gradually abolished the tender years doctrine. In those states, the

joint custody Joint custody is a form of child custody pursuant to which custody rights are awarded to both parents. Joint custody may refer to ''joint physical custody'', ''joint legal custody'', or both combined. In joint legal custody, both parents of a ...

is the rule after divorce or the parents' separation. The Principles of the European Family Law regarding the parental responsibilities clarifies that the two parents are equal and their parental responsibilities should neither be affected by the dissolution or annulment of the marriage or other formal relationship nor by the legal or factual separation between the parents.

Maternal preference versus tender years doctrine

Critics of the family court system, and in particular

fathers' rights The fathers' rights movement is a social movement whose members are primarily interested in issues related to family law, including child custody and child support, that affect fathers and their children. Many of its members are fathers who desi ...

groups, contend that although the tender years doctrine has formally been replaced by the best interests of the child rule, the older doctrine is still, in practice, how child custody is primarily determined in family courts nationwide. Despite this, in 1989, the Massachusetts Supreme Court's Gender Bias Study reported that "Fathers who actively seek custody obtain either primary or joint physical custody over 70% of the time." However, others argue the 70% figure is highly misleading because its definition of joint custody was so broad as to include visitation rights, among other issues. 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 to win custody herself, contrary to the Equal Protection Clause.

References

Bibliography

* Blakesley, Christopher L. 1981
"Child Custody and Parental Authority in France, Louisiana and Other States of the United States: A Comparative Analysis"
'' Boston College International and Comparative Law Review'', Volume 4, Issue 2. * Bookspan, Phyllis T. 1993. "From a Tender Years Presumption to a Primary Parent Presumption: Has Anything Really Changed? … Should It?",

Brigham Young University Brigham Young University (BYU, sometimes referred to colloquially as The Y) is a private research university in Provo, Utah. It was founded in 1875 by religious leader Brigham Young and is sponsored by the Church of Jesus Christ of Latter-d ...

Journal of Public Law'' 8 (January). * Katz, Sanford N. 1992. "'That They May Thrive' Goal of Child Custody: Reflections on the Apparent Erosion of the Tender Years Presumption and the Emergence of the Primary Caretaker Presumption." '' Journal of Contemporary Health Law and Policy'', Catholic University 8 (spring). * McLain, Lynn. 1997. "Children Are Losing Maryland's 'Tender Years' War." '' University of Baltimore Law Review'' 27 (fall). * Pica, Derek A. 1999. "The Tender Years Doctrine: Is It Still the Law?" ''Advocate (Idaho)'' 38 (January). * Radke, Lynn E. 1993. "Michigan's New Hearsay Exception: The 'Reinstatement' of the Common Law Tender Years Rule." '' University of Detroit Mercy Law Review'' 70 (winter). * Rinella, Lori. 1995. "Children of Tender Years and Contributory Negligence." '' UMKC Law Review'' 63 (spring).