The Tender Years Doctrine After Gender-Neutralization

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from the Law Office of Tom James

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The tender years doctrine (the rule that courts should place daughters, and all disabled, unhealthy, or young children, in the custody of their mothers unless the mother is shown to be unfit in a particular case) that was recognized and applied by courts throughout the nineteenth century was firmly in place in every state in the United States throughout most of the twentieth century, too.

As applied in the twentieth century, the “tender years” generally were said to consist of the period from birth through ten or twelve years of age. As in the nineteenth century, many courts applied the doctrine not only to young children, but also to disabled or  other special-needs children, and to daughters of any age.1

“Since the mother is the natural custodian of the young and immature, custody is ordinarily awarded to her … in contests between parents … even when the father is without fault, provided the mother is a fit and proper person…” 2

From the Comments they included with it, it is clear that the drafters of the model no-fault divorce statute (the Uniform Marriage and Divorce Act, adopted in 1970), intended the tender years doctrine to survive no-fault divorce reform and the enactment of statutory “best interest” factors. Nevertheless, by the end of the century, many states had abolished the doctrine — by statute, judicial decision, or both, largely because of the laws prohibiting sex-based discrimination in custody cases that were enacted during the “gender neutralization” movement of the 1970′s and 1980′s. Some state courts declared the tender years presumption unconstitutional because it discriminates on the basis of sex in violation of the Equal Protection clause of the Fourteenth Amendment, or a comparable provision of a state constitution.3

Meanwhile, courts in Minnesota and several other states used a loophole in their nondiscrimination statute to hold on to the tender years doctrine to the greatest extent possible. The nondiscrimination statutes in these states only prohibited the determination of custody “solely” on the basis of sex. Courts seized upon this loophole as a basis for continuing to apply a sex-based preference for mothers. They maintained that so long as they could cite at least one of the dozen or so gender-neutral “best interest factors” in support of a decision,  then they were free to continue to apply a preference for mothers. That is to say, they believed a statute worded in this way gave them room to decide cases partially on the basis of outdated sex-based prejudices and stereotypes.4 In the twenty-first century, judges even in these states have grown less comfortable with openly relying on sex-based biases and prejudices as even a partial basis for giving preferential consideration to female parents. Nevertheless, courts in a small number of states still do.5

In any event, the tender years doctrine, in those few states that still openly apply it, has been weakened since its peak during the first two centuries of the existence of the United States. Originally, it required courts to award custody exclusively to the mother (not to the father, and not to the mother and father jointly) in every case, irrespective of any statutory directive to award custody on the basis of marital fault. A father could not defeat a mother’s presumptive right to custody unless he could prove her completely unfit to parent. And “unfitness,” in this context had come to be construed very narrowly to mean that she presented an actual danger of serious harm to the child’s health or safety.6 By the twenty-first century, though, courts were no longer requiring a showing of actual danger in order to rebut the presumption. Instead, a showing that an award of sole custody to the mother was not in the child’s best interests would suffice.7 In some states, it came to be used only as a tie-breaker, as a way to justify an award of custody to the mother when all other “best interests” factors were equal.8

Today, very few judges cite the tender years doctrine as even a partial basis for awarding the custody of young or special-needs children to a mother. Nevertheless, unspoken beliefs about the superior capacity and disposition of mothers to meet the needs of  children who are very young, or have special needs, most likely continue to influence judicial decisions sub silentio.

  1. Hudson v. Hudson, 295 So. 2d 92 (La. Ct. App. 1974); Commonwealth ex rel. Grillo v. Shuster, 312 A.2d 58 (Pa. Super. 1973); WALTER C. TIFFANY, HANDBOOK ON THE LAW OF PERSONS AND DOMESTIC RELATIONS 271, 289-90 (2d ed. 1909); Thomas R. Trenkner, Annotation, Modern Status of Maternal Preference Rule or Presumption in Child Custody Cases, 70 A.L.R.3d 262 (1976) and cases collected at 274-76.
  2. Hild v. Hild, 157 A.2d 442 (Md. 1960).
  3. See, e.g., Ex parte Devine, 398 So. 2d 686, 697 (Ala. 1981) (“tender years presumption represents an unconstitutional gender-based classification which discriminates between fathers and mothers in child custody proceedings solely on the basis of sex”); State ex rel. Watts, 350 N.Y.S.2d 285, 288 (1973) (holding that the tender years presumption is based on “outdated social stereotypes” and violates the Fourteenth Amendment); C. Buehler & J.M. Gerard, Divorce law in the United States: A focus on child custody, 44 FAM. REL. 439-58 (1995); Joan B. Kelly, The Determination of Child Custody in the USA, 4 FUTURE OF CHILDREN 121 (Spring 1994).
  4. See, e.g., Ryg v. Kerkow, 207 N.W.2d 701 (Minn. 1973) (applying the tender years preference for mothers, even after the Minnesota legislature had enacted a statute prohibiting courts from deciding custody cases “solely on the basis of sex”); see also Ettinger v. Ettinger, 383 P.2d 261 (N.M. 1963) (construing statutory enactment giving both the mother and the father “equal rights” as if it does not prohibit courts from applying a preference for mothers in custody cases); but cf. Erwin v. Erwin, 505 S.W.2d 370 (Tex. Civ. App. 1974) (ruling that the Texas statute requiring custody decisions to be made “without regard to the sex of the parent” effectively abolished the maternal preference doctrine in Texas); State ex rel. Watts v. Watts, 350 N.Y.S.2d 285 (1973) (construing New York statute that “there shall be no prima facie right to custody in either parent” as abolishing the maternal preference in New York.)
  5. See, e.g., Hollon v. Hollon, 784 So. 2d 943, 947 (Miss. 2001) (affirming the use of the maternal preference as a factor along with other evidence concerning the child’s best interests.)
  6. TIFFANY, supra note 1 at 274
  7. See, e.g., Di Biano v. Di Biano, 252 A.2d 735 (N.J. Super. 1969) and cases collected in Trenkner, supra note 1 at 279-81; cf. Mollish v. Mollish, 494 S.W.2d 145 (Tenn. Ct. App. 1972).
  8. See Glasgow v. Glasgow, 426 P.2d 617 (Alaska 1967), Commonwealth ex rel. Grillo v. Shuster, 312 A.2d 58 (Pa. Super. 1973) and cases collected in Trenkner, supra note 1 at 282-84.

One thought on “The Tender Years Doctrine After Gender-Neutralization

  1. really wish commentators would STOP using Americanisms like,’from birth through ten to twelve years’. Where’s the ‘to’? Didn’t writing it ‘sound’ a little odd to you,are you you ‘gone’ too?

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