The Tender Years Presumption
Divorcing spouses today contest few issues more bitterly than child custody. This was not always the case. When a married couple petitioned the courts of ancient Rome for a divorce, any disputes over which parent would retain primary physical custody of the children were easily settled, because there were no disputes. In the eyes of Caesar’s jurists, children were property owned solely by their fathers. The legal rights of mothers were limited since the courts also considered them to be the property of their husbands.
This custom eventually spread around the world and continued well into the 19th century. Under English common law in the 180Os, this practice became virtually self-perpetuating. English property laws decreed that once a man lost title to his assets, in this case his children, his financial responsibility for them also ended. Since few women of that time possessed the resources to support a family on their own, the courts remained averse to awarding custody to the mother even if the children stated a strong preference for living with her.
A gradual shift in custody decisions occurred as the courts entered the 20th century. Historical trends forced a division of family responsibilities, leading fathers away from the family home and into roles as wage earners, while mothers stayed behind as caretakers to the children. This division of roles, as well as an increasing interest in children’s welfare, led to a shift from paternal preference to maternal preference in custody decisions. The Tender Years Presumption suggested that children under the age of 10 could not attain normal emotional development without the continual influence of a maternal presence. By the 1920s, tender years became the standard in 48 states. Over time, it became the father who seldom retained custody of the children, even if the children were adolescents and presumably beyond the consideration of any tender years’ standard.
As time went on and men demonstrated parenting skills comparable to women, judges became less reluctant to award custodial rights to fathers. Fathers began to seek primary custody more often, at times even claiming sex discrimination in custody proceedings. Gradually, court rulings and statutory guidelines awarded more rights to fathers. In a landmark decision in 1981 in the case of Devine vs. Devine, the Alabama court asserted that the tender years presumption represented a form of gender bias against men and violated the Fourteenth Amendment by denying fathers “the equal protection of the law.”
By the 1970s, most states had substituted the tender years doctrine with the “best interests of the child” standard. This standard compelled jurists to award custody based on what is best for the child considering the particular circumstances, rather than simply the gender of the parent. The acceptance of the best interests standard led the way to the development of joint custody in divorce proceedings. Parents argued that it was in the best interest of the children to have access to and rearing from both parents. Child welfare experts began to uncover evidence that access to both parents is critical to a child’s self-esteem and coping (Lewis, 1978; Derdeyn and Scott, 1984; American Psychological Association, 1994; Ackerman and Ackerman, 1997; Herman, 1997). In 1979, California became the first state to enact a joint custody statute. At this time, nearly all states have adopted joint custody statutes or recognize the concept of joint custody in case law. To this date, virtually all states will take the “best interests of the child” standard as the base of their decision making, and rarely will a state cite the Tender Years Presumption as a basis for awarding custody to the maternal side.