The Tender Years Doctrine: Origin, History, Modern Usage And Criticism

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 Doctrine

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 legislation. 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 group.

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 regard. 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 today. 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.