The Post-Divorce-Parenting Glossary

Divorced-Parenting Term

Tender years doctrine

What is the tender years doctrine?

The tender years doctrine is a common law doctrine that alludes to a child benefiting more from being with the mother than the father until his or her "tender" years have passed.  In family law, when parents are divorcing or separating and child custody is an issue, the tender years doctrine often arises.  There is considerable debate and controversy associated with the tender years doctrine, especially from  father's rights advocates because the doctrine originated in the 1800's and is seen as largely obsolete considering the many social developments and changes over the last few decades.

How the tender years doctrine began

Going back to the pre-industrial age, a child generally worked a variety of important chores for the family.  This made children an essential part of a familiy's financial foundation.  Partly because of this, if a marriage was dissolved, the children would remain with the father.  Two important changes to society altered how child custody went from almost always going to the father, to primarily going to the mother after a divorce.

First, the industrial revolution occured.  Families no longer grew their own food or worked at their homestead.  Rather, because of division of labor, men worked jobs outside of home while the mother would remain home and tend to the children.

Second, the women's rights suffrage movement gave women rights that were previously denied to them.

These two factors led to a significant change in child custody cases.  Caroline Norton, the woman who intiated the tender years docitrine, did not do so after these events happened.  Rather, she campaigned in Britain in the mid 1800s for the passing of several child custody acts that would later be used as the basis for the tender years doctrine.

How does the tender years doctrine differ from the best interest standard?

The tender years doctrine was commonplace in the 20th century, however it was reduced as the 21st century approached, and the "best interests of the child" doctrine became the norm.  Many courts have held that the tender years doctrine violates Fourteenth Amendment to the U.S. Constitution.

Shared custody and co-parenting arrangements are a way to prevent a child from growing up with only one parental influence, and tend to lead to more well-adjusted children.

Child custody law today

Because society today is drastically different from society in the 20th century, child custody has needed to change, as well.  The tender years doctrine arguably made sense when mothers were home and only fathers worked, but that is no longer the case.  Both men and women share equal rights in the workplace, and therefore should be sharing child custody, as well.

Shared child custody has become the norm, meaning both the mother and the father have equal rights to the physical and legal custody of their children.  Whether this will be the norm in the future is anybody's guess, but as of now shared custody seems to be a natural and appropriate evolution in child custody law.

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