by Men's Rights Editor / in Fatherhood, Legislation

Understanding the Tender Years Presumption in Custody Cases

For men, and more specifically fathers, divorce can feel like a moment in your life when you are no longer in control of important aspects of your life. You have someone telling you that a percentage of your income goes to the person who you are no longer with. You are told that your children are not to live with you and you can only see them at specific times, as dictated by either the court or your ex. You may not have even had a chance at gaining custody and making a legitimate argument as to your fitness as their custodial parent.

One of the primary reasons of this is due to the tender years presumption.

What is it?

The tender years presumption, often referred to as the tender years doctrine, originated in the United States in 1881 and essentially stated that children should remain in their mother’s care following a divorce.

This was primarily due to the societal perception that mothers were best equipped to meet the children’s needs, according to The Wiley Blackwell Encyclopedia of Family Studies.

The history

The idea of this steamed from colonial America’s mirroring of English Parliament’s common law regarding custody in the early 1700s. Originally, it gave fathers custody of the children following divorce, but after the Industrial Revolution, mothers began staying at home to take care of the kids, while men left for work every day. This was the beginnings of that particular societal perception.

However, when it came to fighting for custody a father’s right had no limitation before 1763, according to the California Law Review. That changed in Rex v. Delaval, when William Murray, the first Early of Mansfield (also known as Lord Mansfield), questioned the inviolability of paternal rights when he denied a father’s writ of habeas corpus. Essentially, the courts didn’t have a procedure to deny a father custody of their child. This made giving a mother custody illegal. By denying a writ of habeas corpus, Lord Mansfield laid the groundwork for a more-even playing field.

Mansfield continued to clarify his position two years later in a case, commonly referred to as the Blisset case, when the courts recognized their responsibility to make their decision based on the best interests of the child, as opposed to the current structure of the law that automatically gave it to the father, according to The Albany Law Journal. In the case, the child’s welfare was put first, and in this particular case, that happened to be with the mother, who was better equip to provide a better home, according to “Treatise on the Right of Personal Liberty, and on the Writ of Habeas Corpus and the Practice Connected with it” by Rollin Carlos Hurd.

The tide continued to shift in 1839, when England permitted a mother to petition the courts for custody of her children, up to the age of seven, and for access to access of older children, according to Parliament. In 1873, England enacted the Infant Custody Act that changed the 1839 version, by better considering the needs of the child, rather than the rights of any given parent. It allowed mothers to petition for custody or access to children younger than the age of 16, but not in all circumstances.

Evolving and devolving

In the United States, the tender years presumption became the law of the land, despite many of the social consequences for women during the time period. According to the Brigham Young University Journal of Public Law, the tender years presumption virtually guaranteed lower economic status for single women and the children in their custody and furthered the notion that a woman’s place is at home caring for the children.

On behalf of the conversation of sexual and gender equality, states began finding that the tender years presumption was in violation of the Equal Protection Clause of the Fourteenth Amendment. Additionally, father’s rights groups and feminists sued, forcing many courts to abandon the notion that the mother is the preferred parent to grant custody to. However, because of how ingrained it was into child custody and family courts for centuries, it has been a constant battle to put the needs of the child ahead of the remains of the tender years presumption.

With the notion of seeking the best interest of the child being considered more and more, courts on both sides of the ocean began establishing the mother as a preferred parent in custody cases, thinking that they were being progressive and nuanced in their decision. As this notion became more and more of the establishment, it often caused irregularities in the ways courts determined child custody for decades. At some point, it stopped being about the best interests of the child and started being about the circumstances that would support or discredit maternal custody.

The idea of proving a mother as an “unfit” parent is a burden that often falls on the fathers and their attorneys to prove, when the reality is that a child could benefit from either a father or a mother having custody. Joint custody and co-parenting is a desirable scenario. However, when the well-being of the child is at stake and one parent does not have the child’s best interests at heart, it’s important to recognize and understand the perceptions that go against a father when pursuing custody, in order to combat them and prove yourself as the one can provide your child with the life that they need.