Tender years doctrine has been a part of the Family Law since late 19th century. It deals with the custody of a child in case, the parents of the child file for divorce. Read on, to know more about this doctrine and its relevance in today’s times.
During the times when the American society was forming, people adopted the practices of the English Common Law which considered the father to be the best person to take the custody of his child, in case of a divorce. Women were considered to be incapable of guiding children in worldly matters. As per the marriage contract in those times, men had the privilege to take the custody of his partner’s belongings and property, and provide her with protection and financial support. A father was considered as protector of the family and capable of fulfilling the needs of his children. Hence, fathers enjoyed rights to keep children with them, in case of separation of the married couple.
Later on, people realized that a child requires special care and attention during the initial years. Since fathers were considered to be busy earning for the family, the Congress framed an act known as the Talfourd Act in the year 1839. According to this act, children under seven years were allowed to stay with their mother, as she was considered to take care of the child in a better way than the father. Under this act, children were returned to their fathers when they reached four or five years of age. Thus, it was a temporary guideline in which fathers enjoyed the final custody of the child.
What is Tender Years Doctrine?
The implementation of Talfourd Act instructed the family courts to presume that mothers would be better caretakers for children below 7 years and that, they should be awarded their custody. This presumption is known as the “Tender Years Doctrine”. As years passed by, the temporary custody of the child was replaced by permanent custody with the mother. Furthermore, the ‘tender years’ age limit was increased from seven to thirteen.
Now, in case of divorce, the mother was awarded the custody of the child, if the child was in tender years of age. Experts believe that this complete shift was influenced by the Industrial Revolution. The revolution required the fathers to work away from home because of which they could not perform their role as caretaker and guide for children. Mothers were now considered to be in a better position to take care of children. This cultural shift became the rationale for giving mothers permanent custody of their children.
In 1916, the Washington Supreme Court stated that –
“Mother’s love is a dominant trait in even the weakest of women, and as a general thing surpasses the paternal affection for the common offspring, and moreover, a child needs a mother’s care even more than a father’s. For these reasons, courts are loath to deprive the mother of the custody of her children, and will not do so unless it be shown clearly that she is so far an unfit and improper person to be entrusted with such custody as to endanger the welfare of the children“.
Replacement of Tender Years Doctrine
Later on, this doctrine was replaced by “Best Interests of Children” doctrine. The Fourteenth Amendment in the U.S. Constitution states the Equal Protection Clause, which entitles a person with equal protection of laws. The tender years doctrine was said to violate the equal protection clause. The best interest of the child was decided by a judge on the basis of the needs of the child, rather than the gender attributes of the parents.
Depending on the proceedings, he had to decide which parent would be able to fulfill the needs of the child. Even though the best interests of the child were prime consideration, the child’s need of a mother was also taken into account. In cases, when the mother was proved to be highly abusive and negligent, the father was given the child’s custody without any doubt.
To summarize, we can say that in earlier times, fathers were considered to be better caretakers of children. Later on, people realized the importance of a mother in a child’s life and made it a point to give the custody of the child to her in case of a divorce. But now, since both the parents are capable of providing the required support to their child, the judge of a family court has the prime responsibility of taking into consideration all the child custody issues and judge, which parent will be able to take better care of the child and accordingly give his verdict.
