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Tender Years Doctrine
JAIMEE L. HARTENSTEIN
Eastern Illinois University, USA
e Tender Years Doctrine, also referred
to as the tender years presumption, was
a legal principle that awarded custody to
mothers based on the idea that mothers were
natural caretakers with nurturing abilities
and had more of a biological connection to
their children. e Tender Years Doctrine
rst emerged in family law in 1881, stating
that custody should be awarded to mothers
followingadivorceastheywerethemost
capable and equipped parents to meet the
needs of their children. Mothers were consid-
ered to provide the best and most adequate
care for a young child’s physical, emotional,
and psychological needs. When all consider-
ations are equal, children of young or tender
ages, or older girls, will be raised and receive
the best care from their mothers. According
to the Tender Years Doctrine, this argument
does not need support as it is nature and
motherhood is instinctive (Pica 1995).
CHILDREN AND THE TENDER YEARS
DOCTRINE
e age range that was considered to con-
stitute the tender years of the child was le
to the discretion of the judicial system. For
this reason the tender years might include a
variety of age ranges. For some, the tender
years was meant for children four years old
and under and for others it was seven years
old and younger. e teenage years, which
meant 13 years old or older, was considered
to be the upper limit of the doctrine and was
oen not supported by the judicial system
e Wiley Blackwell Encyclopedia of Family Studies, First Edition. Edited by Constance L. Shehan.
© 2016 John Wiley & Sons, Inc. Published 2016 by John Wiley & Sons, Inc.
DOI: 10.1002/9781119085621.wbefs449
when determining the custody arrangement
of teenage children.
At the time the Tender Years Doctrine was
implemented and used in the judicial system,
it reected the societal stereotype that young
children’s healthy growth and development
was most likely to occur in the care of, and
being reared by, their mothers. During this
time, fathers tended to work outside the home
and mothers were considered as the primary
caretaker of the children. e belief was that
the mothers should continue to ll this role
andhandletheresponsibilitiesiftheparents
decided to divorce or separate. In order for
a father to obtain custody of his children, he
wouldhavehadtoprovetothejudicialsystem
that the mother of his children was unt and
would not be an adequate parent to the chil-
dren. Fathers were rarely able to provide proof
that the mother of the children was unt to
care for her children and, therefore, during
the time of use of the Tender Years Doctrine,
fathers were seldom awarded custody of their
children (Jones 1977– 78). e Tender Years
Doctrine was also applied as a tie-breaker.
In this approach, when both the mother and
father were considered to be equal caretakers,
the court would order the mother to receive
custody of the children. Mothers had an
advantage over fathers in receiving custody
of their children in this application of the
Tender Years Doctrine (Atkinson 1984).
WOMEN’SRIGHTSBEFORETHE
TENDER YEARS DOCTRINE
Prior to the Tender Years Doctrine, it was
common law for fathers to receive custody of
minor children following a divorce. Children
and women were viewed as the property
of their father, and husband, and women
2TENDER YEARS DOCTRINE
had little to no rights (Jones 1977– 78). e
few rights women received were through
their fathers or husbands. Fathers at the time
were considered to be the primary providers
and protectors of their children and family;
therefore, custody was automatically awarded
to fathers until the shi to the Tender Years
Doctrine occurred. Women at this time were
typically fullling the primary caretaking role
while fathers worked outside the home. is
was the rst time that it was legally recognized
thatmotherswerebettersuitedtocarefor
their children than fathers (Jones 1977– 78).
OneofthemainassumptionsoftheTender
Years Doctrine was that children needed the
careandloveoftheirmother.esecond
assumption was that mothers were better able
and equipped to meet the daily needs of their
children. e criticisms of the Tender Years
Doctrine were that the mothering role can be
performed, and in many cases is performed,
by other individuals besides the biological
mother. In addition, men are capable and
possess the abilities to provide care and per-
form childrearing functions just like women
(Kla 1982).
e Tender Years Doctrine was not as
widely used in the judicial system from the
1970s and was gradually replaced with a
gender-neutral presumption called the Best
Interests of the Child Standard. e Tender
Years Doctrine was determined to be in viola-
tion of the equal protection clause of the 14th
Amendment in the United States Constitu-
tion. Many states did not allow custody cases
to be determined based on the sex of a parent
as it was considered to be discrimination.
However, some courts ignored the statutes
and custody decisions were determined based
on the sex of a parent. Due to the reliance
on the Tender Years Doctrine in earlier years,
to this day some fathers do not seek custody
as they do not believe it will be awarded
because of the maternal preference in the
judicial system (Kla 1982).
One aspect oen noted is that it is dicult
to gain an understanding and fully compre-
hend how the judicial system is interpreting
and applying the statutes and standards
(Atkinson 1984). Arguments are made that
while the judicial system states that all
decisions are equal and the best interest of
the children is being sought, there is still
an underlying maternal preference in the
judicial system that continues in some court-
rooms today. A study that examined the
view of 25 judges regarding the Tender Years
Doctrinefoundthatoverhalfofthejudges
expressed support for the application of the
Tender Years Doctrine when determining
custody arrangements of children. e judges
expressed support for the Tender Years Doc-
trine for the following reasons: the bond
between a mother and infant, application of
the Tender Years Doctrine as a tie-breaker,
and the negative portrayals of mothers. e
study concluded that there is continued
support for gender dierences used in the
legal system despite the current use of the
gender-neutral Best Interests of the Child
Standard (Artis 2004).
CONTEMPORARY STANCE OF THE
DOCTRINE FOR CONTEMPORARY
FAMILY LIFE
Currently the Best Interests of the Child Stan-
dard is used in the legal system. e use of
the Best Interests of the Child Standard com-
monly takes two forms of either the primary
caretaker presumption or the joint custody
presumption. e primary caretaker pre-
sumption is that custody should be awarded
totheparentwhohasbeenmoreinvolvedin
the upbringing of the child. e joint custody
presumption is the view that both parenting
roles are somewhat interchangeable and the
best interest of the child is to have substantial
contactwithbothparents.Recentresearch
has also supported the continued contact
TENDER YEARS DOCTRINE 3
with both parents following the divorce or
separation, due to the benets experienced
by the children. Shared or joint custody is a
custody arrangement that allows the children
to maintain and continue to build relation-
ships with both parents following divorce or
separation. Parents also are not faced with the
sole burden of caretaking for their children
and can share the responsibility with the
other parent (Tracy 2007). In general, judges
in family law have a great deal of discretion
in determining custody arrangements of chil-
dren. Some continue to use the Tender Years
Doctrine in determining custody arrange-
ments even though it has been abolished,
but use the biological dierences and natural
instincts of mothers to support their positions
(Artis 2004).
Current research in the area of child
custody is focused on the use and imple-
mentation of the Best Interests of the Child
Standard. Researchers have examined how it
is being interpreted and implemented by the
judicial system. In addition, current research
is seeking to examine received input from
children in custody arrangement decisions.
Mediation practices in some areas have
started facilitating child inclusion practices
in child custody mediation. ere is support
for this as children are aected by custody
arrangement decisions and should have a say,
whereas arguments against child inclusion
incustodyarrangementdecisionsisthatthe
child will be placed in the middle and forced
to choose sides (Kelly 1994). Adolescents have
expressedadesiretohaveinputinthecustody
arrangement decisions, but do not feel com-
fortable making the nal decisions. Parents
have mixed perspectives on the involve-
ment of children in the custody arrangement
decisions, but agree the nal custody arrange-
ment decision is determined by the parents
(Parkinson, Cashmore, and Single 2005).
Future directions of research, theory,
and methodology in this area should focus
on the inuence and implications that the
use of mediation or parent education has
on the custody arrangement decisions of
children following a divorce or separation.
Scholars might consider examining how
custody arrangement decisions are made in
the various family structures. For example,
how are custody arrangements determined
in same-sex households and cohabiting
households? Similar to this, future research
should investigate how the process of cus-
tody arrangement decisions compares to
the decisions made in divorced or separated
households of heterosexual couples. For the
various family structures, what does the cus-
tody arrangement decision-making process
look like? How is the Best Interests of the
Child Standard applied and interpreted in
the various family structures as well as in the
judicial system?
SEE ALSO: Child Custody; Divorce Law;
Divorce Mediation in the United States; Family
Law in the United States; Parental Roles
REFERENCES
Artis, Julie E. 2004. “Judging the Best Interests of
the Child: Judges’ Accounts of the Tender Years
Doctrine.” Law & Society Review, 38: 769–806.
DOI:10.1111/j.0023-9216.2004.00066.x.
Atkinson, Je. 1984. “Criteria for Deciding Child
Custody in the Trial and Appellate Courts.”
Family Law Quarterly, 18: 1 – 42.
Jones, Cathy J. 1977 – 78. “e Tender Years Doc-
trine: Survey and Analysis.” JournalofFamily
Law, 16: 695– 738.
Kelly, Joan B. 1994. “e Determination of Child
Custody.” e Future of Children, 4: 121– 42.
Kla, Ramsay Laing. 1982. “e Tender Years Doc-
trine: A Defense.” California Law Review, 70:
335–72.
Parkinson, Patrick, Judy Cashmore, and Judi Sin-
gle. 2005. “Adolescents’ Views on the Fairness
of Parenting and Financial Arrangements aer
Separation.” Family Cour t Review, 43: 429 –44.
DOI:10.1111/j.1744-1617.2005.00044.x.
Pica, Derek A. 1995. “e Tender Years Doctrine:
Is it the Law?” e Advocate, 28: 12–15.
4TENDER YEARS DOCTRINE
Tracy, Melissa A. 2007. “e Equally Shared
Parenting Time Presumption – A Cure-All or a
Quagmire for Tennessee Child Custody Law?”
University of Memphis Law Review, 38: 153 –85.
FURTHER READING
DiFonzo, J. Herbie, Kristin Pezzuti, Nicole
Guliano, and Diana Rivkin. 2013. “Joint Custody
Laws and Policies in the Fiy States: A Summar y
Memorandum.” Accessed April 29, 2015.
http://www.masslegalservices.org/system/les/
library/JtCiustodySummary%20Memo-5.pdf.
Pruett, Marsha Kline, and J. Herbie DiFonzo. 2014.
“Closing the Gap: Research, Polic y, Practice, and
Shared Parenting.” Family Court Review, 52:
152–74. DOI:10.1111/fcre.12078.
