Tender years doctrine
Historic legal principle in English family law
- 2 min read
- 2 chapters
Related on Lably
Through Legal doctrine, Europe and European Union
History
Historically, English family law gave custody of the children to the father after a divorce. Until the 19th century, women had few individual rights and obligations, most derived from their fathers or husbands.
In the early nineteenth century, Caroline Norton, a prominent social reformer, campaigned for the right of women to have custody of their children. Norton, who had undergone a divorce and been deprived of her children, worked with politicians. The British Parliament enacted legislation to protect mothers' rights. The Custody of Infants Act 1839 established a presumption of maternal custody for children under the age of seven years; the Act also gave some discretion to the judge in a child custody case, and maintained responsibility for financial support from their former husbands. With the Custody of Infants Act 1873, the Parliament extended the presumption of maternal custody until a child reached sixteen. The doctrine spread in many states of the world because of the British Empire. By the end of the 20th century, the doctrine was established in most of the United States and Europe.
Sign in to keep reading
One more chapter is free with a Lably account.
Application
In United States
The tender years doctrine was frequently used in the 20th century but is gradually being replaced by the "best interests of the child" doctrine of custody through changes in state statutes. Furthermore, several courts have held that the tender years doctrine violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. However, state courts still use the doctrine in many cases, which prompted family court reform similar to criminal justice reform.
Critics of the family court system, and in particular fathers' rights groups, contend that although the tender years doctrine has formally been replaced by the best interests of the child rule, the older doctrine is still, in practice, how child custody is primarily determined in family courts nationwide. 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 to win custody herself, contrary to the Equal Protection Clause.
In Europe
Most of the states in the EU have gradually abolished the tender years doctrine. In those states, the joint custody is the rule after divorce or the parents' separation. The Principles of the European Family Law regarding the parental responsibilities clarifies 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.