791

TENDERYEARSDOCTRINE

The tender years doctrine, or the practice of awarding

infants and young children to mothers in custody dis-

putes, was employed in most state courts from the late

19th century until the 1960s. The tender years doctrine

is based on the idea that mothers have superior, “nat-

ural” nurturing abilities and a biological connection to

their infants. In the 1970s, most states abolished the

tender years doctrine and replaced it with a gender-

neutral “best interests of the child” standard. However,

some current research claims that a maternal prefer-

ence, especially in custody disputes over infants, con-

tinues to exist in practice in lower-level courts.

History of Child Custody Law

Historically, fluctuations in child custody law have

reflected societal changes in beliefs about parenthood.

Until the mid- to late 1800s, fathers had sole rights to

custody, reflecting the notion that women and children

were considered the property of the male head of the

household. The father’s absolute claim to custody also

reflected the view of children at the time: In the primar-

ily agrarian economy of the early 19th century, children

were seen as economic assets. This agrarian economy

shifted to an industrial one in the mid- to late 19th cen-

tury, which made children less economically valuable

and also necessitated the separation of home and work.

With the emergence of separate spheres, men worked

outside of the home, and women had responsibility for

the home. At this time, the law shifted to a “tender

years” doctrine. The tender years doctrine emphasized

mothers’ biological superiority as a parent and gave a

legal preference to mothers in custody matters.

In the past few decades, most states have replaced the

tender years doctrine with a best interests of the child

doctrine, under which both mothers and fathers are con-

sidered equally. This shift in custody law reflected more

widespread changes to gender-neutral legal language.

For example, in Watts v. Watts(1973), a New York

family court stated that “application of the ‘tender years

presumption’ would deprive [the father] of his right to

equal protection of the law under the Fourteenth

Amendment to the United States Constitution.”

Adopting the “best interests” standard also coincided

with increasing public acceptance of the notion that

fathers are able to care for children as well as mothers.

In 1986, in Pusey v. Pusey, a Utah appeals court held

that a maternal preference “lacks validity because it is

unnecessary and perpetuates outdated stereotypes.”

At the same time, psychological research was used

in legal proceedings to bolster the idea that mothers or

fathers could be good caregivers to young children.

Research on father-child interactions supported this

idea, as did studies claiming that preserving the child’s

relationship to its “psychological parent”—the adult

most responsible for and connected to the child—was

paramount. This psychological research was used to

discredit the tender years doctrine and to endorse the

best interests of the child policy.

Current Research on the

Tender Years Doctrine

Despite the shift to a more gender-neutral custody

standard, the consideration of tender years is not a relic

T

T-Cutler (Encyc)-45463.qxd 11/18/2007 12:44 PM Page 791