The tender years doctrine (also referred to as the tender years assumption or presumption) is a 19th century English common law principle that a mother should automatically have custody of her young children in the event of a divorce. The presumption behind the principle is that young children need to be with their mother during their formative years. In practice, it meant that a father can’t sue for custody of his children until they have surpassed their tender years.

The tender years doctrine has been replaced in American and English common law by the assumption that the child’s needs should come first. Now, family courts are instructed to consider which parent can best serve the child’s needs when determining custody. Statistically, mothers still receive primary custody far more often than fathers, but this is not due to any legal precedent concerning the tender years doctrine.

That said, while the tender years doctrine no longer applies to custody cases in the United States, the presumptions behind the doctrine are still widely held by many. It’s safe to say that most people naturally assume that a mother is better fit to raise young children, even if they cannot explain why. Unfortunately, that means it can be an uphill battle for fathers who want custody of their young children after a divorce.

If you are in the midst of divorce proceedings and your former spouse uses the tender years doctrine to justify her request for custody, your attorney can quickly negate this claim. The judge presiding over your case will also know that this claim has been replaced by the child’s best interests assumption, so you have nothing to worry about. Instead, your focus should be to prove why granting you custody is in the best interests of your children.

History of the Tender Years Doctrine

Historically, English family law granted custody of children to the father in a divorce because the father—as the family’s breadwinner and sole provider—was considered the only parent fit to financially provide for the children. As women couldn’t own property and had a difficult time finding employment, this practice held until women’s rights began to expand in the 19th century.

In the early 19th century, Caroline Norton—a prominent author, journalist, socialite, and social reformer—launched a campaign to grant women custody of their children in a divorce. Norton herself had undergone a divorce and was deprived of custody of her children, so she was able to campaign passionately from personal experience. It took years of effort, but her campaign came to fruition in 1839 when British Parliament passed the Custody of Infants Act to protect a mother’s rights. 

The Custody of Infants Act of 1839 offered judges considerably more discretion in custody proceedings. It also gave birth to the tender years doctrine, as the law established a presumption of maternal custody for children age 7 and younger. In cases where the tender years doctrine applied, the father was expected to provide financial support for the mother and children, too.

Once the law took root in England, the tender years doctrine spread throughout the British empire and was adopted by many other nations—including the United States. The law was actually expanded in 1873 to extend the presumption of maternal custody to age 16, though this change didn’t cross over to the United States. In fact, common law in the United States dropped the “tender age” threshold to age four. 

 

Best Interests of the Child

In the United States, the tender years doctrine was challenged on the grounds that it violates the equal protection clause of the Fourteenth Amendment to the US Constitution. The courts upheld this argument, and the tender years doctrine was gradually replaced by the “best interests of the child” doctrine of custody. The change first took shape in the courts, and eventually found its way into state legislation by the 20th century.

The “best interests” doctrine of custody that’s widely used today is derived from Article 3 of the UN Convention on the Rights of the Child. Article 3 establishes that “all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be a primary consideration.” In determining a child’s best interests, the responsible parties must evaluate and balance “all the elements necessary to make a decision in a specific situation for a specific individual child or group of children.” 

 

Examples of Relevant Elements to Consider Include:

  • The child’s age, gender, background, and personal history
  • The child’s development and gradual transition into an independent adult
  • The child’s rights and needs to health and education
  • The child’s safety, protection, and care
  • The child’s skills and capacities
  • The child’s social contacts with adults and other children
  • The child’s views, beliefs, and aspirations
  • The child’s vulnerabilities
  • The child’s well-being
  • The family environment, family relations, and contact

Under the best interest doctrine of custody, the judge will award primary custody to the adult who will best serve the child’s interests. Note that this doesn’t have to be one of the child’s parents—if both parents are unfit, the court may award custody to a relative or to a state agency until one or both parents can care for the child. 

 

How the Tender Years Doctrine Affects Modern Custody Cases

Statistically, mothers receive primary custody of children far more often than fathers. A lingering bias from the tender years doctrine may play a role in this disparity, but there are a number of other factors at play, too. Notably, hiring an attorney and fighting for child custody can be a costly endeavor, which leads many fathers to concede custody to avoid unnecessary costs. Unfortunately, this isn’t always in the best interests of the child.

If you are a father and you believe it’s in your child’s best interests to be placed in your custody, you should discuss your case with a family law attorney. An attorney can advise you on how to obtain full or joint custody on your own if your divorce case is civil (i.e. you and your former spouse are on speaking terms and can handle the agreement privately), or he can represent you if your case requires mediation.