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Tender Years Doctrine



The Tender Years Doctrine was a family law principle that began in 1881 and held that children should remain in their mother's care following a divorce as mothers are best equipped to meet the children's needs. The Tender Years Doctrine was determined to discriminate against, and violate, the rights of fathers and other caretakers. Currently, the Best Interests of the Child Standard is applied when determining custody arrangements for children. Additional research is needed to investigate the advantages and disadvantages of child inclusion in custody arrangement, shared parenting, and child support decisions.
Tender Years Doctrine
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
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).
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
oen 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 reected 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
decided to divorce or separate. In order for
a father to obtain custody of his children, he
that the mother of his children was unt 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 unt 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).
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
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 fullling the primary caretaking role
while fathers worked outside the home. is
was the rst time that it was legally recognized
their children than fathers (Jones 1977– 78).
Years Doctrine was that children needed the
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 oen noted is that it is dicult
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
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 dierences used in the
legal system despite the current use of the
gender-neutral Best Interests of the Child
Standard (Artis 2004).
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
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
has also supported the continued contact
with both parents following the divorce or
separation, due to the benets 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 dierences 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 aected by custody
arrangement decisions and should have a say,
whereas arguments against child inclusion
child will be placed in the middle and forced
to choose sides (Kelly 1994). Adolescents have
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 inuence 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
Artis, Julie E. 2004. “Judging the Best Interests of
the Child: Judges’ Accounts of the Tender Years
Doctrine.” Law & Society Review, 38: 769806.
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:
Parkinson, Patrick, Judy Cashmore, and Judi Sin-
gle. 2005. “Adolescents’ Views on the Fairness
of Parenting and Financial Arrangements aer
Separation.” Family Cour t Review, 43: 429 44.
Pica, Derek A. 1995. “e Tender Years Doctrine:
Is it the Law?” e Advocate, 28: 1215.
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.
DiFonzo, J. Herbie, Kristin Pezzuti, Nicole
Guliano, and Diana Rivkin. 2013. “Joint Custody
Laws and Policies in the Fiy States: A Summar y
Memorandum.” Accessed April 29, 2015.les/
Pruett, Marsha Kline, and J. Herbie DiFonzo. 2014.
“Closing the Gap: Research, Polic y, Practice, and
Shared Parenting.” Family Court Review, 52:
15274. DOI:10.1111/fcre.12078.
The purpose of this chapter is the study of the development of joint physical custody in Europe. Its growth is understood in the context of the Second Demographic Transition, a theoretical framework that in its recent versions emphasises female education and gender equality as main drives for momentous family transformations. The chapter focuses on various experiences of five European countries concerning joint physical custody and deals with the relationship between its prevalence and patterns of gender equality. The final section concentrates on outcomes from adolescents with shared custody in relation to other living arrangements. The chapter concludes by highlighting the existence of wide European disparities in this respect and urges the collection of comparable data so that progress can be adequately measured and understood.
Full-text available
Interviews were conducted with 60 young people aged 12-19 in Australia, concerning their views about parenting and financial arrangements after separation. Half the young people reported that they had no say at all in where they would live after separation. A quarter said they were never able to see their non-resident parent when they wanted to. There was a strong relationship between young people's perceptions of the fairness of the parenting arrangements and the extent to which they were allowed to participate in making those arrangements. Half said that they did not have enough time with their non-resident parent. Having a continuing and meaningful relationship with both parents and with siblings, was very important to them. More than a third favoured arrangements spending equal time with each parent. The young people were also very concerned with issues about fairness between first and second families, both in terms of time availability and financial provision.
Full-text available
This article reviews briefly the history of child custody decision making and describes current custodial arrangements in the United States. It examines both the manner in which parents and courts make decisions regarding custody and access, and the changes in visiting patterns in recent decades. The author discusses the impact of reforms in the law and the implementation of newer dispute resolution and educational interventions, and then makes recommendations for policy and practice.
With dramatic changes in family life over the last several decades, child custody law has shifted from a maternal preference to a more egalitarian standard, the best interests of the child. Despite this change in the law, scholars have debated whether gender continues to play a role in the resolution of custody disputes. Drawing on feminist legal scholarship and sociolegal research on judges, I assess the current debates over gender and custody by examining the accounts of judges who frequently adjudicate custody cases. I conduct in-depth, face-to-face interviews with twenty-five trial court judges in Indiana and investigate judges' accounts about whether they continue to use the tender years doctrine in custody disputes, even though the custody statute is explicitly gender-neutral. Then, I assess several competing explanations of the variation across judges' accounts, including the judges' gender role attitudes, gender, age, and political party affiliation. In exploratory analyses, I also examine the contested custody rulings of a subset of nine judges to assess whether judges' accounts are congruent with their actual custody decisions. I discuss the implications of these findings in light of feminist legal scholarship as well as empirical research on child custody adjudication.
The Tender Years Doctrine: Is it the Law
  • Derek A Pica
Pica, Derek A. 1995. "The Tender Years Doctrine: Is it the Law?" The Advocate, 28: 12-15.
The Tender Years Doctrine: Survey and Analysis
  • Cathy J Jones
Jones, Cathy J. 1977-78. "The Tender Years Doctrine: Survey and Analysis." Journal of Family Law, 16: 695-738.
Joint Custody Laws and Policies in the Fifty States: A Summary Memorandum
  • J Difonzo
  • Kristin Herbie
  • Nicole Pezzuti
  • Diana Guliano
  • Rivkin
DiFonzo, J. Herbie, Kristin Pezzuti, Nicole Guliano, and Diana Rivkin. 2013. "Joint Custody Laws and Policies in the Fifty States: A Summary Memorandum." Accessed April 29, 2015. library/JtCiustodySummary%20Memo-5.pdf.
The Equally Shared Parenting Time Presumption -A Cure-All or a Quagmire for Tennessee Child Custody Law?
  • Melissa A Tracy
Tracy, Melissa A. 2007. "The 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