Is it Time to Reconsider the “Tender Years Doctrine”?

Last Saturday I was at Shabbat services at my synagogue. Also there was a handicapped little boy who was struggling to get around. Virtually every little girl at the service was coming to his aid, without any prompting by their parents. The other little boys seemed oblivious and generally unconcerned. My observations made me question whether there is some innate (or culturally developed) nurturing skill in little girls, seemingly lacking in boys. My generation grew up in a gender neutral political environment that emphasized the equality of the sexes in all respects. However, from my observation, it does seem that girls are wired differently, and have a tendency of care that boys rarely possess. 

Perhaps there may be something to the “tender years doctrine,” long rejected as being a relic of the past. The “tender years doctrine” arose early in the twentieth century, as a judicial presumption that children of divorce should ordinarily be placed with their mothers. It arose from Victorian views of the superiority of women morally and with regard to the rearing of children. This maternal preference replaced an earlier paternal preference in custody cases, long observed by American culture, which made women’s rights to their children secondary to the interests of their husbands.

In the 1960s the tender years doctrine, employed by virtually all states in resolving custody disputes, came under attack due to a variety of societal reasons that included challenges to women’s traditional roles in the home, and men’s claims of sexual discrimination in contested custody cases.  To be sure, these concerns were valid and deserved redress. On the other hand, the lack of any presumption in determining custody has created problems that may well exceed the progressive benefits of a gender neutral “best interest” standard. 

Custody litigation is the most toxic of all litigation. Undeniably, the litigation itself doesn’t serve a child’s best interest. The best interest standard, relied on by virtually all states in adjudicating custody, is an indeterminate standard that invites both parents to take their best shots, thus increasing custody litigation. If a rebuttable maternal presumption existed, courts still could award custody to worthy fathers and dispossess unworthy mothers; but much litigation caused by the leveling of the custody playing field would be avoided.


The maternal presumption reflects the politically incorrect reality that nature or society has equipped women with certain definite skills, equipping them to care for young children. While little boys are playing with cars and trucks, little girls for the most part are dragging around baby dolls. From my observation, most women have a caretaking instinct that the law currently ignores. When the law disregards principles of nature, unforeseen consequences occur–including more people competing to “win” the prize of custody. Perhaps it is time for legislatures and courts to rethink the notion of gender neutrality.



Filed under child custody

3 responses to “Is it Time to Reconsider the “Tender Years Doctrine”?

  1. harry schaffner

    I have enjoyed the blog pieces very much. The best and most thought provoking is the tender years doctirne. I recall its demise, which was first announced in an appelate court case and not followed by trial judges for several years. It all reminds me of a book by Anna Freud and others, (Yale as I recall) that was really about the need to stop putting kids in foster homes and then back with their mother and then back again. What I liked most was the title and the thought: beyond the best interests of the child. Afterall, Texas claimed that they took 400 kids for their best interests. I think kids should go to their mother until age 14, when they get a vote, one of three. And I think that the removallaw should be abolished because it beats women up, while men can do what they please.

  2. Nils von Keudell

    How preposterous that a child should be required to live with their mother until age 14. It assumes that that men don’t know how cook, clean, change diapers, do homework, or lick the emotional wounds children incur. Are men nothing but useless, unless of course it comes to paying the bills? There are many men out there that are better parents than the mothers, but the tender years doctrine ignores the facts of individual cases and gives an undue preference to women. It would be great to stay at home all day, call yourself the ‘primary caretaker’ and use this as a crutch when a divorce occurs and the issue of custody arises. My advice to men– keep her working throughout the marriage. And, when you get home, the job is not done. There are things to do for the children 24/7. Both parties should contribute financially to the household and raise the children with an equal investment in both. Perhaps the concept of ‘primary breadwinner’ ought to be given the same weight as ‘primary caretaker.’ We know that the despite the supposed abolition of the tender years doctrine and the imposition of gender neutrality, the doctrine and the presumption are still employed in custody cases all the time. The courts need to appreciate that a work ethic is critical to a family’s success. Fathers should not be penalized for sacrificing their time with the children to put food on the table.

  3. Amber

    You make great points here! Very insightful.

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