Tender Years Presumption in Custody Awards

The tender years doctrine is a presumption by a court that a very young child should remain in the care of the child's mother and that a father needs to overcome that presumption by showing he would be the better parent. Many courts no longer use this presumption in making custody determinations.

Over the years, where fathers would routinely go to work and mothers stayed home and raised the children, courts would usually award custody of the children to the mother in divorce proceedings based on a belief that it would provide more consistency for the children. When the parents were not married, it was even more difficult for a father to gain custody. To be awarded custody, the father would have to show that the mother was unfit. As times changed and more mothers went to work and as more states adopted nondiscrimination laws, the courts were required to treat both parents equally in making custody determinations.

Many states have adopted nondiscrimination laws that bar a court from presuming that either parent is superior to the other in making child custody decisions. In these states, where the parents cannot agree on which one should have custody of the child or children, each parent must present reasons why the court should choose that parent. It is no longer necessary that a father try to establish that the mother is unfit in order to obtain custody. For example, where a mother works long hours that would interfere in a young child's sleep and time with the mother, while the father works from home, the court may award custody of a very young child to the father.

Some state courts and some judges still presume that very young children, those under the age of eight, are better off living with their mother. In those courtrooms, it may not be necessary that the father prove the mother is unfit, but the father will have to overcome the presumption and present evidence that it is in the child's best interests that the child or children be placed with the father rather than the mother. In other words, the burden of proof is placed on the father, not the mother.