Tender Years Doctrine
Encyclopedia
The tender years doctrine is a legal principle
which has existed in family law
since the late nineteenth century. This common law
doctrine presumes that during a child's "tender" years (generally regarded as the age of thirteen and under), the mother should have custody
of the child. The doctrine often arises in divorce
proceedings.
gave custody of the children to the father, in case of divorce. Until the nineteenth century the women had few individual rights, most of their rights being derived through their fathers or husbands. In the early nineteenth century, Mrs. Caroline Norton, a prominent British society beauty, feminist, social reforment author, and journalist, 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. So, she worked with the politicians of those times and eventually was able to convince the British Parliament to enact legislation to protect mothers' rights. The result was the Custody of Infants Act from 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. In 1873
the Parliament extended the presumption of maternal custody until a child reached sixteen years of age.. This doctrine spread then in majority of the states of the world as England was controlling a wide empire. By the end of the 20th century this doctrine was abolished in the majority of the states of USA and Europe.
of the Fourteenth Amendment
to the U.S. Constitution.
is the rule after divorce or the separation of the parents. The Principles of the European Fammily Law regardign 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.
in the custody of the mother. A study of FACT Canada association shows the mothers is awarded the sole custody
or the primary residence
in more than 80% of the cases. The situation is not much different in EU countries, for example in Romania
the mother is granted custody in over 84.5% of the cases .
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.
Legal doctrine
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows...
which has existed in family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
since the late nineteenth century. This common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
doctrine presumes that during a child's "tender" years (generally regarded as the age of thirteen and under), the mother should have custody
Child custody
Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.Following ratification of the United...
of the child. The doctrine often arises in divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
proceedings.
History
Historically the English Family LawFamily law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
gave custody of the children to the father, in case of divorce. Until the nineteenth century the women had few individual rights, most of their rights being derived through their fathers or husbands. In the early nineteenth century, Mrs. Caroline Norton, a prominent British society beauty, feminist, social reforment author, and journalist, 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. So, she worked with the politicians of those times and eventually was able to convince the British Parliament to enact legislation to protect mothers' rights. The result was the Custody of Infants Act from 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. In 1873
Custody of Infants Act 1873
The Custody of Infants Act 1873 was an Act of the Parliament of the United Kingdom. It was signed into law on 24 April 1873....
the Parliament extended the presumption of maternal custody until a child reached sixteen years of age.. This doctrine spread then in majority of the states of the world as England was controlling a wide empire. By the end of the 20th century this doctrine was abolished in the majority of the states of USA and Europe.
In United States
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. Furthermore, several courts have held that the tender years doctrine violates the equal protection clauseEqual Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
to the U.S. Constitution.
In Europe
The Tender Years doctrine was gradually abolished in the majority of the states of the EU. In those states the joint custodyJoint custody
Joint custody is a court order whereby custody of a child is awarded to both parties. In joint custody both parents are custodial parents and neither parent is a non-custodial parent, or, in other words, the child has two custodial parents. In the United States, many states recognize two forms of...
is the rule after divorce or the separation of the parents. The Principles of the European Fammily Law regardign 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.
Maternal Preference versus Tender Years Doctrine
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. Statistics such as those from the U.S. Census Bureau indicate that family courts still demonstrate an overwhelming preference to place the children of a divorceDivorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
in the custody of the mother. A study of FACT Canada association shows the mothers is awarded the sole custody
Sole custody
Sole custody arrangements have generally be considered a traditional form of custody for many in the past, however there has been a trend since the 1980s towards joint custody arrangements being more favorable...
or the primary residence
Primary residence
A person's primary residence is the dwelling where they usually live, typically a house or an apartment. A person can only have one primary residence at any given time, though they may share the residence with other people...
in more than 80% of the cases. The situation is not much different in EU countries, for example in Romania
Romania
Romania is a country located at the crossroads of Central and Southeastern Europe, on the Lower Danube, within and outside the Carpathian arch, bordering on the Black Sea...
the mother is granted custody in over 84.5% of the cases .
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.
See also
- Custody of Infants Act 1873Custody of Infants Act 1873The Custody of Infants Act 1873 was an Act of the Parliament of the United Kingdom. It was signed into law on 24 April 1873....
- Custody of Infants Act 1839Custody of Infants Act 1839Custody of Infants Act of 1839 was an Act of the Parliament of the United Kingdom.The bill was greatly influenced by the reformist opinions of Caroline Norton. Mrs. Norton had a failed marriage with a violent husband. Her pamphlets arguing for the natural right of mothers to have custody of their...
- Caroline Norton
Links
- Tender Years Doctrine on TheFreeDictionary.Com
- Criteria for Custody Awards
- http://www.spartacus.schoolnet.co.uk/Wcustody39.htm
- http://digital.library.upenn.edu/women/norton/nc-biography.html