The tender years doctrine, or the practice of awarding infants and young children to mothers in custody disputes, was employed in most state courts from the late 19th century until the 1960s. The tender years doctrine is based on the idea that mothers have superior, “natural” nurturing abilities and a biological connection to their infants. In the 1970s, most states abolished the tender years doctrine and replaced it with a gender-neutral “best interests of the child” standard. However, some current research claims that a maternal preference, especially in custody disputes over infants, continues to exist in practice in lower-level courts.
History of Child Custody Law
Historically, fluctuations in child custody law have reflected societal changes in beliefs about parenthood. Until the mid- to late 1800s, fathers had sole rights to custody, reflecting the notion that women and children were considered the property of the male head of the household. The father’s absolute claim to custody also reflected the view of children at the time: In the primarily agrarian economy of the early 19th century, children were seen as economic assets. This agrarian economy shifted to an industrial one in the mid- to late 19th century, which made children less economically valuable and also necessitated the separation of home and work. With the emergence of separate spheres, men worked outside of the home, and women had responsibility for the home. At this time, the law shifted to a “tender years” doctrine. The tender years doctrine emphasized mothers’ biological superiority as a parent and gave a legal preference to mothers in custody matters.
In the past few decades, most states have replaced the tender years doctrine with a best interests of the child doctrine, under which both mothers and fathers are considered equally. This shift in custody law reflected more widespread changes to gender-neutral legal language. For example, in Watts v. Watts (1973), a New York family court stated that “application of the ‘tender years presumption’ would deprive [the father] of his right to equal protection of the law under the Fourteenth Amendment to the United States Constitution.” Adopting the “best interests” standard also coincided with increasing public acceptance of the notion that fathers are able to care for children as well as mothers. In 1986, in Pusey v. Pusey, a Utah appeals court held that a maternal preference “lacks validity because it is unnecessary and perpetuates outdated stereotypes.”
At the same time, psychological research was used in legal proceedings to bolster the idea that mothers or fathers could be good caregivers to young children. Research on father-child interactions supported this idea, as did studies claiming that preserving the child’s relationship to its “psychological parent”—the adult most responsible for and connected to the child—was paramount. This psychological research was used to discredit the tender years doctrine and to endorse the best interests of the child policy.
Current Research on the Tender Years Doctrine
Despite the shift to a more gender-neutral custody standard, the consideration of tender years is not a relic of the past. As recently as 1989, a Florida appeals court, in DeCamp v. Hein, applied a maternal preference in the case of a child of tender years. And until 1997, the Tennessee child custody statute allowed judges to consider the sex of the parents in the case of a child of tender years. Thus, some scholars argue that judges in the lower courts have not “caught up” with this change in the law. Even if the tender years doctrine is not endorsed in statutory or case law, trial court judges may subscribe to it.
A recent study examined both judges’ views of the tender years doctrine and whether their views were consistent with contested custody rulings. In face-to-face interviews, judges were asked directly about the tender years doctrine and also asked to assess a hypothetical custody case involving an infant. Despite the current gender-neutral custody policy, over half the judges interviewed expressed some support for the tender years doctrine. These views of the tender years doctrine were explained, in large part, by the gender of the judges and, relatedly, by their gender role attitudes; female judges reported more egalitarian views and were less likely to support the tender years doctrine than male judges. When comparing judges’ views of the tender years doctrine with their decisions in custody disputes, judges’ accounts were generally consistent with their rulings in contested custody disputes. Judges who endorsed the tender years doctrine were more likely to award custody of infants and young children to mothers than judges who did not endorse the tender years doctrine.
This research suggests that although state appellate courts and legislatures have abolished the tender years doctrine, practice in lower courts may continue to perpetuate some vestiges of the tender years doctrine. So despite greater legal and cultural acceptance of the idea that fathers and mothers are equally qualified to raise children, there are complex processes at work in the legal system that may perpetuate traditional notions of motherhood and fatherhood.
- Artis, J. E. (2004). Judging the best interests of the child: Judges’ accounts of the tender years doctrine. Law & Society Review, 38, 769-786.
- DeCamp v. Hein, 541 So.2d 708, 710 (Fla. App. 1989).
- Mason, M. A. (1994). From fathers’ property to children’s rights: The history of child custody in the United States. New York: Columbia University Press.
- Pusey v. Pusey, 728 P.2d 117 (Utah 1986).
- Watts v. Watts, 77 Misc.2d 178, 350 N.Y.S.2d 285 (1973).