The tender years doctrine is a legal principle in family law since the late 19th century. In common law, 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 proceedings.

History

Historically, English family law 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, 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.^[1] In 1873, the Parliament extended the presumption of maternal custody until a child reached sixteen.^[2] The doctrine spread in many states of the world because of the British Empire. By the end of the 20th century, the doctrine was established in most of the United States and Europe.

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 .^[3] Furthermore, several courts have held that the tender years doctrine violates the equal protection clause 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.^[4]

In Europe

Most of the states in the EU have gradually abolished the tender years doctrine. In those states, the joint custody 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.^[5]

Maternal preference versus tender years doctrine

Critics of the family court system, and in particular fathers' rights 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."^{[citation needed]} 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.^[6]

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.^[7]