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Children and 'the Tender Years Doctrine'

In child custody cases, most courts are bound to make their decision based on their assessment of what lies in the best interest of the child – whether single custody with the mother, the father, or some form of joint custody.

In most cases, before any evidence is presented, both the mother and father are seen as having an equal right to custody. Sometimes, depending on the age of the child, the judge may take the child’s own preferences into account.

The Tender Years Doctrine is a legal principle which has existed in family law since the late nineteenth century.

This doctrine gradually was adopted in the United States after first appearing in English courts in 1839, presumes that during a child’s tender years from the age of thirteen and under, the mother should have custody of the child. The doctrine often arises in divorce proceedings.

There was a time when mothers came to be seen as having a special ability to nurture their pre-teenaged children. Fathers would leave the house in the early morning and go to work, returning at night – often after the children had been put to bed.

Mothers, on the other hand, did not work; they were home with their children all day or taking them to school, picking them up in the afternoon, or engaging in other activities with them. Awarding a child to a father was almost unheard of.

By 1920, a father who wished to contend for custody of his child would have to demonstrate that the mother was unfit. During the latter part of the 20th century, as a father’s rights movement developed and gender roles began rapidly evolving, the courts began applying the principal of “best interest of the child” in deciding custody cases.

Mothers no longer could argue that their bond with their children was closer than their husbands because now mothers held jobs outside of the house also. Courts began to argue that favoring mother over father in custody cases conflicts with the Equal Protection Clause of the 14th Amendment of the Constitution.

Although the Tender Years Doctrine is no longer legally applied in courts, many feel that a bias still exists toward granting custody to mothers rather than fathers, and that fathers still face an uphill battle in seeking sole custody of their children.

If you are a parent, chances are your children are the most important thing in your life. Very few relationships have the emotional attachment that parent-child relationships do.

If you are facing a child custody issue, contact the Family Law offices of Holstrom, Block & Parke. When it comes to your children, our attorneys realize the importance of the situation your family is facing and every measure will be taken to come up with a resolution that will suit your family.

Contact one of our offices, located in San Bernardino, Riverside, and Orange Counties.

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