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The Tender Years Doctrine: Then and Now

The gender neutralization of custody battles is becoming increasingly level, but is it truly fair? Historically, the placement of children in relation to their parents has varied. When the English Common-Law system was established, it was common for children to essentially be considered property of their fathers and since women were not granted the ability to own any sort of property during that time, custody went to the fathers.

The industrialization of society during the early 1800's led to a shift that saw men working away from home more often, leaving mothers as the primary caretakers of children. Commonwealth v. Addicks in 1813 was one of the first recognitions of this trend as represented by family law. The Pennsylvania court system stated that "… considering their tender age, [minor children] stand in need of that kind of assistance, which can be afforded by none so well as a mother" thus coining the "Tender Years Doctrine" which remained prevalent until it was found to be a violation of a father's 14th amendment rights in 1977.

The current statute on the matter now states that "taking into account the child's best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child," which clearly avoids gender discrimination in regards to custody. Many still maintain the sentiment that fathers are shorthanded in custody disputes and that only in the case of a clearly negligent mother will they be able to gain full custody of their children. When asked on the matter, several Tennessee lawyers stated that they saw a strong shift away from the "Tender Years Doctrine," but the current statute that attempts to "maximize each parent's time" can be interpreted very differently within the court system, causing confusion and inconsistency.

What do you think about the shift? Are we gender neutral on the matter or are their still undercurrents of the "Tender Years Doctrine" in modern society?

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