{"id":3718,"date":"2018-10-18T09:33:52","date_gmt":"2018-10-18T16:33:52","guid":{"rendered":"https:\/\/www.jacksonwhitelaw.com\/arizona-family-law\/?page_id=3718"},"modified":"2022-12-14T10:51:52","modified_gmt":"2022-12-14T17:51:52","slug":"what-is-the-tender-years-doctrine","status":"publish","type":"post","link":"https:\/\/www.jacksonwhitelaw.com\/arizona-family-law\/blog\/what-is-the-tender-years-doctrine\/","title":{"rendered":"What is the Tender Years Doctrine?"},"content":{"rendered":"

The tender years doctrine (also referred to as the tender years assumption or presumption) is a 19th<\/sup> 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\u2019t sue for custody of his children until they have surpassed their tender years.<\/p>\n

The tender years doctrine has been replaced in American and English common law by the assumption that the child\u2019s needs should come first. Now, family courts are instructed to consider which parent can best serve the child\u2019s 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.<\/p>\n

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\u2019s 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.<\/p>\n

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 The judge presiding over your case will also know that this claim has been replaced by the child\u2019s best interests assumption, so you have nothing to worry about.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.<\/p>\n

History of the Tender Years Doctrine<\/h2>\n

Historically, English family law granted custody of children to the father in a divorce because the father\u2014as the family\u2019s breadwinner and sole provider\u2014was considered the only parent fit to financially provide for the children. As women couldn\u2019t own property and had a difficult time finding employment, this practice held until women\u2019s rights began to expand in the 19th<\/sup> century.<\/p>\n

In the early 19th<\/sup> century, Caroline Norton\u2014a prominent author, journalist, socialite, and social reformer\u2014launched 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\u2019s rights.\u00a0<\/span><\/p>\n

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.<\/p>\n

Once the law took root in England, the tender years doctrine spread throughout the British empire and was adopted by many other nations\u2014including the United States. The law was actually expanded in 1873 to extend the presumption of maternal custody to age 16, though this change didn\u2019t cross over to the United States. In fact, common law in the United States dropped the \u201ctender age\u201d threshold to age four.\u00a0<\/span><\/p>\n

Best Interests of the Child<\/h2>\n

In the United States, the tender years doctrine was challenged on the grounds that it violates the equal protection clause of the Fourteenth Amendment<\/a> to the US Constitution. The courts upheld this argument, and the tender years doctrine was gradually replaced by the \u201cbest interests of the child\u201d doctrine of custody. The change first took shape in the courts, and eventually found its way into state legislation by the 20th<\/sup> century.<\/p>\n

The \u201cbest interests\u201d doctrine of custody that\u2019s widely used today is derived from Article 3 of the UN Convention on the Rights of the Child. Article 3 establishes that \u201call 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.\u201d In determining a child\u2019s best interests, the responsible parties must evaluate and balance \u201call the elements necessary to make a decision in a specific situation for a specific individual child or group of children.\u201d\u00a0<\/span><\/p>\n

Examples of Relevant Elements to Consider Include:<\/h2>\n