In the early and mid 20th century, the tender years' doctrine was a popular approach to child custody cases in all states, including New Jersey. This doctrine proposes that during the tender years of a child's life - four years old and under - custody should only be granted to the mother.
Although this doctrine was scrapped from U.S. law books decades ago and has been deemed unconstitutional in some courts, some argue that the presumption behind the doctrine still heavily influences the outcome of child custody proceedings today.
Historically, English and American family law previously used to always grant custody to a father during a divorce. This is because the father was the family's breadwinner and sole provider, while women remained unemployed and unable to own property. It wasn't until the 19th century, the dawn of the feminist movement, that family law was revolutionized and the legislation that inspired the tender years' doctrine was born.
A British feminist, journalist, and author by the name of Caroline Norton proposed the doctrine through a campaign for women's rights. She claimed that women should be given custody of their children after a divorce. Her passion derived from experience, as she weathered a contentious divorce that deprived her custody of her children. Norton managed to convince the British Parliament to pass a law, known as the Custody of Infants Act of 1839.
The Custody of Infants Act gave judges full discretion to determine child custody and sparked the idea that maternal custody was ideal for young children. Due to the influence of the British Empire, the doctrine spread to various countries across the world.
How U.S. Society Supplemented Application
Society in the 20th century fueled the dated mindset at the core of the tender years' doctrine. At one point, more than 80% of American women and men declared that it was wrong for wives to work outside the home if their husbands were employed. Employers refused to hire wives, or they fired women shortly after being married, in fear that women would take jobs away from the men that needed them. This left wives no choice but to be homemakers.
This notion that wives were nurturing caretakers who were well-equipped to rear children seeped into the courtroom. Since mothers did the majority of the parenting while they were married, U.S. judges saw fit that they should be awarded sole custody in child custody hearings involving young children when they divorced.
Near the end of the 20th century, most courts began to reverse decisions and repeal laws that pushed the tender years' doctrine and replaced them with gender-neutral legislation. Of this new legislation was the prominent and widely used, “best interest” standard. This standard, derived from the UN Convention on the Rights of the Child, claims that “all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies” should be primarily determined by what's in the best interest of the child.
As for today, statistics reveal that mothers receive primary custody of children far more than fathers in child custody hearings. Some believe that although the tender years' doctrine is no longer enforced, it still plays a role in this widening disparity.
New Jersey Family Law Attorney
Since both women and men share equal rights in the workplace, there is no doctrine that can justify the automatic right to custody for either parent. Both parents have equal rights to seek custody of their child. Attorney Joseph D. Lento has experience resolving custody disputes, either by settlement or through litigation. If you have any questions or concerns about the process or representation, contact the Lento Law Firm today at 888-535-3686.