Tender Years Doctrine

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A doctrine rarely employed inchild custodydisputes that provides that, when all other factors are equal, custody of a child of tender years—generally under the age of thirteen years—should be awarded to the mother.

The tender years doctrine is a judicial presumption that operates in divorce cases to give custody of a young child to the mother. Most states have eliminated this presumption, and some courts have held that the tender years doctrine violates the equal protection clause of the fourteenth amendment to the U.S. Constitution because it discriminates on the basis of sex.

Early English common law originally gave custody of the children of divorcing parents to the father. Women had few individual rights until the nineteenth century; most of their rights were derived through their fathers and husbands. Under these conditions women had no right to raise their children after a divorce.

In the early nineteenth century, Mrs. Caroline Norton, a prominent London hostess, author, and journalist, 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, was able to convince the British Parliament to enact legislation to protect mothers' rights. The result was the Custody of Infants Act of 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. In 1873 Parliament extended the presumption of maternal custody until a child reached sixteen years of age. Courts made exceptions in cases in which the father established that the mother had committed adultery.

Many courts and legislatures in the United States adopted the tender years presumption. To grant custody of a child to a father was "to hold nature in contempt, and snatch helpless, puling infancy from the bosom of an affectionate mother, and place it in the coarse hands of the father." The mother was "the softest and safest nurse of infancy" (Ex parte Devine, 398 So. 2d 686 [Ala. 1981], quoting Helms v. Franciscus, 2 Bland Ch. [Md.] 544 [1830]).

The tender years presumption in child custody cases persisted for more than one hundred years, with the majority of states recognizing the presumption. In the latter half of the twentieth century, courts and legislatures began to reverse decisions and repeal laws that recognized the tender years presumption in favor of gender-neutral considerations. In most states the best interests of the child are now the primary consideration in child custody cases, and the primary caretaker is presumed to be the best parent to handle primary custody of a small child. Some state courts have gone so far as to hold that the tender years doctrine violates the Equal Protection Clause of the state constitution. (See, e.g., King v. Vancil, 34 Ill. App. 3d 831, 341 N.E. 2d 65 [Ill. 1975].)

A small number of states still recognize the tender years presumption, but only in certain cases. In Pennington v. Pennington, 711 P.2d 254 (Utah 1985), the Supreme Court of Utah stated that it had "long expressed a preference for placing very young children in the mother's custody." The court noted, however, that "the preference operates only when all other things are equal." The Pennington court held that the best interests of the child were to be given primary consideration, and it went on to affirm the award of child custody to the father in the case.

In other areas of the law, the term tender years may refer to a law that creates special rules for small children. For example, some states enact special laws governing hearsay evidence in child sex abuse cases. These tender years laws create exceptions to evidentiary rules by allowing the introduction of hearsay statements and videotaped testimony of children under a certain age.

further readings

Bookspan, Phyllis T. 1993. "From a Tender Years Presumption to a Primary Parent Presumption: Has Anything Really Changed? … Should It?" Brigham Young University 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).


Child Abuse; Children's Rights; Family Law; Sexual Abuse.