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As a part of family law, the tender years doctrine or tender years presumption has

been in existence since the latter part of the 19th century.

According to common law, the doctrine proposes that during the tender years of a
child (which is generally regarded as such from the age of four and under), only
the mother is allowed custody of the child. The tender years doctrine is often
raised in divorce proceedings.

Most states in the United States and Europe have scrapped out this presumption.
Some courts in the U.S. have ruled against the doctrine insisting that it goes
against the equal protection clause found in the 14th amendment of the United
States Constitution (it discriminates based on gender).

Origin and History of The Tender Years

In the early part of the 19th century, a prominent British feminist, society beauty,
journalist and social reformer author, Caroline Norton, began a campaign for
women’s rights. She proposed that women should be given custody of their
children in the event of divorce.

After having a divorce, Norton, was deprived custody of her children. She worked
with some politicians and successfully convinced the British Parliament to pass a
law that protects mothers’ rights.

This legislative enactment came in form of the Custody of Infants Act of 1839. The
Act gave a certain level of discretion to judges during proceedings in child custody
cases and initiated the presumption of maternal custody for young children (the
age of seven and under).

In 1873, the British Parliament extended this presumption until a child gets to the
age of 16. The tender years doctrine spread through many countries around the
world due to the influence of the British Empire.

By the latter part of the 20th century, the tender years doctrine was scrapped in
most parts of the United States and Europe.
Application in The United States
Most courts in the U.S. took up the doctrine as at that time (19th to 20th century).
The tender years doctrine in child custody cases was incorporated in the United
States for over a hundred years, with most states in the region recognizing it as

However, by the latter part of the 20th century, most courts and legislatures had
started to reverse decisions and repeal any laws that regarded the doctrine as
legislation placing it in favor of gender-neutral factors.

The doctrine was gradually replaced (in the legislation of majority of the states)
by a new child custody law known as the best interests of the child doctrine.

In most states during the latter half of the 20th century, the best interests of the
child doctrine is now what is primarily considered in child custody proceedings.

The primary caretaker is regarded as the best parent to be granted custody of a

young child. In some other states the courts have gone as far as ruling that the
tender years presumption goes against the Equal Protection Clause, a part of the
state constitution.

Despite the scrapping of the tender years presumption in the 20th century a few
states in the United States still recognize the doctrine (however, this has only
been noted in certain cases). In other aspects or applications of the law, tender
years may mean any law that initiates special rules for young children.

Take for example, several states in the United States enact special laws that
govern hearsay evidence in any child sex abuse case. These tender years laws
have some exceptions to evidentiary rules which allow the introduction of hearsay
reports, statements and videotaped testimony for children below a certain age

Application in Europe

Originally, the early English common law granted the custody of young children
of divorcing parents to their father. Women only had few individual rights, at least till
the 19th century.
Most of the women rights back then were derived through their husbands and
fathers. Under these conditions no woman had a right to raise her child/children
after undergoing a divorce.

As time passed by the tender years presumption was gradually removed in the
majority of the EU states. The joint custody legislation is now the rule (in the
event of a divorce or after separation of the parents) in all of those places the
tender years doctrine was abolished.

The assumption by the European Family Law in relation to parental responsibilities

(in the event of divorce) mentions clearly that both parents are equal in this

It further stated that the parental responsibilities of both parties should not be
affected by the annulment or dissolution of their marriage or by other formal
relationships. It concludes that parental responsibilities shouldn’t be affected by
the factual or legal separation of both parents.

Criticism of The Tender Years Doctrine

Most people who are critical of the family court system (and particularly the
father’s rights groups), contest that though the tender years assumption has been
formally replaced by the joint custody legislation and the best interests of the
child rule, it is still in practice, and is still the means by which most child custody
cases are primarily determined nationwide in family courts (United States).

Despite this, in the year 1989 a Bias Study in the Massachusetts Supreme Court
reported that fathers who are actively seeking custody may obtain either joint
physical or primary custody 70% of the time.

Critics insists that the idea that the father has to prove that the mother is an unfit
parent before he can be awarded primary custody, and the fact that the mother
does not need to prove that the father is unfit in order to be granted custody, is
contrary to what is indicated in the equal protection clause.
Tender Years Doctrine Today
Today the best interests of the child and the joint custody legislation doctrine have
became the norm in the United States and Europe respectively. As stated earlier in
this article the majority of the courts in the U.S., have ruled that the tender years
presumption violates the 14th Amendment. Co-parenting and shared custody
arrangements are now the norm for preventing the affected children from growing
up with one parent’s influence (this tends to produce more well-adjusted children).

Because our society today is different from what it was in the 20th century, the
child custody law has needed to change. The tender years doctrine made much
sense when mothers stayed at home and fathers worked, but that isn’t the case

Both women and men share equal rights at the workplace, and therefore the
same principle should be applied when it comes to parental responsibility.
Meaning that both the mother and father have rights to the legal and physical
custody of their children. Shared custody is an appropriate and natural evolution in
the child custody law.

source: https://baysingerlaw.com/2018/02/tender-years-doctrine-origin-history-modern-usage-criticism/
Tender years doctrine
From Wikipedia, the free encyclopedia

Caroline Norton, the person who initiated the tender years doctrine

The tender years doctrine is a legal principle in family law since the late nineteenth
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.


 1History
 2Application
 2.1In United States
 2.2In Europe
 3Maternal preference versus tender years doctrine
 4Bibliography
 5See also
 6External links
 7Notes

Historically, English family law gave custody of the children to the father after a
divorce because the father is able to provide the child. Until the 19th century, the
women had few individual rights and obligations, most being derived through
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 abolished in
most of the United States and Europe.
This section's factual accuracy is disputed. Relevant discussion may be found on Talk:Tender
years doctrine. Please help to ensure that disputed statements are reliably sourced. (October
2017) (Learn how and when to remove this template message)

In United States[edit]
Tender years doctrine was also frequently used in the 20th century being
gradually replaced towards the end of the century, in the legislation of most
states, by the "best interests of the child" doctrine of custody.[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.[4]
In Europe[edit]
The Tender Years doctrine was gradually abolished in the majority of the states of
the EU. In those states the joint custody is the rule after divorce or the separation of
the parents. The Principles of the European Family Law regarding the parental
responsibilities mention in clear 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[edit]

Critics of the family court system, and in particular father's 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, the means by
which 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
extremely misleading because of its definition of joint custody being 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 in order to win custody herself, and that this is contrary to the equal
protection clause.[7]
Souce: https://en.wikipedia.org/wiki/Tender_years_doctrine

Best interest of child and tender years
JUNE 06, 2013
A Filipino couple, both working in the United States (US), met and fell in
love. After three (3) years of living together and having a daughter, they
got married. A few months later, the wife gave birth to their second child,
but their relationship began to deteriorate. The wife claimed that her
husband nagged her too much about money matters while he claimed she
was a “spendthrift, buying expensive jewelry and antique furniture instead
of attending to household expenses.”

Eventually, the relationship turned sour and the wife moved to a different
state, leaving her husband and children behind. The husband moved back
to the Philippines. Due to the demands of his work, however, he was
forced to live in the US once again, so he left his children with his sister. It
was only two years later that the mother of the children went to the
Philippines to gain custody over her children.

The Regional Trial Court (RTC) gave the father sole parental authority and
suspended the mother’s parental authority over her children. Visitation
rights were to be agreed upon by the parties and approved by the RTC. The
Court of Appeals reversed the trial court’s decision and granted custody to
the mother and visitation rights to the father on weekends premised on the
tender years doctrine, which provides that “no mother shall be separated
from her child under seven years of age, unless the court finds compelling
reasons for such measure.”
The Supreme Court (SC) sustained the findings and conclusions of the
RTC, reiterating that the paramount criterion for granting parental authority
is the best interest of the child and not the tender years doctrine –

…[the RTC] gave greater attention to the choice of Rosalind (the daughter)
and considered in detail all the relevant factors bearing on the issue of
custody… It is not so much the suffering, pride, and other feelings of either
parent but the welfare of the child which is the paramount consideration.

Citing Unson III v. Navarro, it explained that “in all controversies

regarding the custody of minors, the sole and foremost consideration is the
physical, education, social and moral welfare of the child concerned,
taking into account the respective resources and social and moral situations
of the contending parents.”

The SC further explained the rules in ascertaining the child’s best interest –

In ascertaining the welfare and best interests of the child, courts are
mandated by the Family Code to take into account all relevant
considerations. If a child is under seven years of age, the law presumes that
the mother is the best custodian. The presumption is strong but it is not
conclusive. It can be overcome by “compelling reasons.” If a child is over
seven, his choice is paramount but, again, the court is not bound by that
choice. In its discretion, the court may find the chosen parent unfit and
award custody to the other parent, or even to a third party as it deems fit
under the circumstances.

Lastly, the Court observed that the children’s age and their choice of parent
should have been taken into consideration when assessing the childrens
best interest –
Not only are the children over seven years old and their clear choice is the
father, but the illicit or immoral activities of the mother had already caused
emotional disturbances, personality conflicts, and exposure to conflicting
moral values, at least in Rosalind. This is not to mention her conviction for
the crime of bigamy… The children understand the unfortunate
shortcomings of their mother and have been affected in their emotional
growth by her behavior (Espiritu v. Court of Appeals, G.R. No. 115640, 15
March 1995, J. Melo).

SOURCE: https://www.manilatimes.net/best-interest-of-child-and-tender-years-doctrine/7504/