The Tender Years Doctrine

The tender years doctrine has been in the law for centuries, and it often arises in divorce proceedings. It’s a legal principle that presumes that a mother should have custody of a child during his formative years. This doctrine assumes that mothers have better-nurturing abilities and that children bond better with their moms.

The tender years doctrine doesn’t consider if the mother is fit to raise the child or account for the father’s parental rights. While this doctrine has several criticisms, some judges may still be biased towards awarding custody of infants to mothers. Divorcing fathers can hire custody lawyers in West Chester PA, to help protect their parental rights in court.

History of the Tender Years Doctrine

Before the 19th century, fathers had sole custody rights because of their ability to provide for their children financially. Women generally had legal restrictions at the time, and most of their rights came from their husbands or fathers. As such, mothers had no right to raise their children after a divorce.

However, in the early 19th century, a prominent British feminist, Caroline Norton, began campaigning for women’s custody rights. Norton had recently divorced, and the courts denied her custody of her children. She was able to successfully convince the British parliament to award custody of young children to mothers.

An enactment came into law, which allowed judges to award maternal custody for children under the age of seven. Some years later, the British parliament extended the presumption of maternal to children up to 16 years old.

The tender years doctrine spread widely across Europe and America for over a hundred years. However, at the end of the 20th century, most US states began scrapping this doctrine due to its many shortcomings.

Criticisms of the Tender Years Doctrine

Various courts assert that the tender years doctrine contravenes the fourteenth amendment’s equal protection clause. This constitution violation discriminates against gender equality. Also, it doesn’t recognize that both parents play an essential role in a child’s developmental years.

Fathers contesting against the doctrine had to prove that mothers were unfit to raise their children. Critics argue that the fact that mothers didn’t need to prove that a father is unfit is also gender-biased. Finally, the doctrine doesn’t take into account the best interest of the child.

The Tender Years Doctrine Today

Many states have new laws guiding custody determination to accommodate for the shortcomings of the tender years doctrine. Today, the best interest of the child’s standard and other factors guides a court’s decision in awarding custody. This standard is gender-neutral and offers an appropriate arrangement for both parents and children.

Also, unlike in the 19th century, more mothers work full-time now, and the tender years doctrine can no longer be applicable. Co-parenting and shared custody arrangements have become the new norm.

So, if you’re going through a divorce, both you and your spouse have equal rights to legal and physical custody. Consider hiring one of the best custody lawyers in West Chester, PA, to stand on your behalf.


There has been a shift from the tender years doctrine to the best interest of the child’s standard in granting custody. However, despite the change, critics feel that some judges may be gender-biased, especially in the lower courts.

If you’re a father seeking custody, the best thing you can do to protect your rights is to meet with one of the custody lawyers in West Chester, PA.

Steven B. Stock

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