of the past. As recently as 1989, a Florida appeals
court, in DeCamp v. Hein, applied a maternal prefer-
ence in the case of a child of tender years. And until
1997, the Tennessee child custody statute allowed
judges to consider the sex of the parents in the case of
a child of tender years. Thus, some scholars argue that
judges in the lower courts have not “caught up” with
this change in the law. Even if the tender years doctrine
is not endorsed in statutory or case law, trial court
judges may subscribe to it.
A recent study examined both judges’ views of the
tender years doctrine and whether their views were con-
sistent with contested custody rulings. In face-to-face
interviews, judges were asked directly about the tender
years doctrine and also asked to assess a hypothetical
custody case involving an infant. Despite the current
gender-neutral custody policy, over half the judges inter-
viewed expressed some support for the tender years
doctrine. These views of the tender years doctrine were
explained, in large part, by the gender of the judges and,
relatedly, by their gender role attitudes; female judges
reported more egalitarian views and were less likely to
support the tender years doctrine than male judges.
When comparing judges’ views of the tender years doc-
trine with their decisions in custody disputes, judges’
accounts were generally consistent with their rulings in
contested custody disputes. Judges who endorsed the
tender years doctrine were more likely to award custody
of infants and young children to mothers than judges
who did not endorse the tender years doctrine.
This research suggests that although state appellate
courts and legislatures have abolished the tender years
doctrine, practice in lower courts may continue to per-
petuate some vestiges of the tender years doctrine. So
despite greater legal and cultural acceptance of the
idea that fathers and mothers are equally qualified to
raise children, there are complex processes at work in
the legal system that may perpetuate traditional
notions of motherhood and fatherhood.Julie E. ArtisSee alsoChild Custody Evaluations; Divorce and Child
CustodyFurther Readings
Artis, J. E. (2004). Judging the best interests of the child:
Judges’ accounts of the tender years doctrine. Law &
Society Review, 38,769–786.
DeCamp v. Hein, 541 So.2d 708, 710 (Fla. App. 1989).Mason, M. A. (1994). From fathers’ property to children’s
rights: The history of child custody in the United States.
New York: Columbia University Press.
Pusey v. Pusey, 728 P.2d 117 (Utah 1986).
Watts v. Watts, 77 Misc.2d 178, 350 N.Y.S.2d 285 (1973).TERMINATION OF
PARENTALRIGHTS
When families fail to care for and protect children, states
have the authority, when granted legal jurisdiction by
the court, to initiate family services and to provide sub-
stitute care for the children. The prevailing legal stan-
dard for the care and protection of children is the best
intereststandard. The state is expected to act in the best
interest of the child. Termination of parental rights is a
legal action initiated in state family or juvenile court by
the state’s child protective services department. It typi-
cally follows a series of care and protection hearings and
interventions designed to protect children within the
confines of child welfare laws and regulations promot-
ing child safety, family life, and parental rights. Cases of
severe maltreatment, defined by statute, may move
immediately to termination of parental rights without
the provision of family services. Less serious care and
protection cases are resolved without a termination
hearing. When the conditions for family reunification
remain unsuitable, a termination hearing is initiated
according to state statutes, child protective service regu-
lations, and codified timelines. The content of termina-
tion statutes varies across state jurisdictions (in some
instances, federal statutes apply). Common thresholds
for state jurisdiction and subsequent termination of
parental rights include serious harm or the threat of seri-
ous harm to a child due to a caregiver’s physical abuse,
sexual abuse, or physical and emotional neglect of the
child. Some statutes contain other criteria, such as the
amount of time the child has been in substitute place-
ment and the child’s attachment to substitute caregivers
after a defined period of time in their custody.
Termination of parental rights is a legal action and
a subsection of child and family law and psychology.
In termination proceedings, the attorney’s role depends
on whom the attorney represents. The child protective
services agency’s attorney, employed by the state, rep-
resents the interests of the state in the care and protec-
tion of children. When facing a termination hearing,
parents in states allowing indigent funding are792 ———Termination of Parental RightsT-Cutler (Encyc)-45463.qxd 11/18/2007 12:44 PM Page 792