Was there wisdom in the “tender years” doctrine

Posted Monday, August 14th, 2017 by Gregory Forman
Filed under Child Custody, Jurisdiction, Law and Culture, Not South Carolina Specific, Of Interest to General Public

There is no doubt that the “tender years” doctrine–which favored granting mothers custody of young children–would not pass constitutional muster in the 21st century. Such gender based classifications cannot survive strict scrutiny as there is no “compelling governmental interest” that favors mothers over fathers in determinations of infant custody and, even if there were, a blanket preference for mothers is not narrowly tailored the law to achieve that interest.

Prior to the South Carolina legislature abolishing the “tender years” doctrine on May 18, 1994, the doctrine had remained, on occasion, outcome determinative. The last such reported case relying upon the doctrine was Woodall v. Woodall, 322 S.C. 7, 471 S.E.2d 154 (1996). While abolishing that doctrine was a good thing, the “folk wisdom” that led to this doctrine is one of the few circumstances in which cultural notions of biological roles may have been based on actual biology–rather than culture.

Call me a traitor to my gender but there is no way that the emotional and physical contributions of a mother and a father to the development of a child are equal at the moment of the child’s birth. No matter how supportive the father has been to the mother during the child’s gestation, his contribution is not equal. Many of the stereotypes regarding both genders’ perceptions of the import of love and sex can be traced to this unequal contribution. Even if men currently don’t contribute as much care giving to children as do women, nothing in biology prevents them from doing so. Until we enter a “Brave New World” of test-tube gestation, this pre-birth imbalance will remain, no matter how much the culture changes.

This doesn’t mean an unfit mother should not lose custody of her newborn and it doesn’t mean that a father of a newborn should not get substantial visitation. However, awarding a father 50/50 custody of a teenager seems–at least to me–less problematic than awarding a father 50/50 custody of a newborn.

We can see this imbalance operating, on a limited basis, in the importance that folks place on breast feeding in custody cases involving infants. Mothers in such cases will note their unique role in being able to breast feed as a basis to obtain or keep primary custody. Actually, it’s not such a bad argument–it’s simply an argument the law will no longer accept.

A “tender years” doctrine that reflexively awarded mothers custody of infants was a denial of equal protection to fathers. However custody law that recognizes a mother’s greater contribution to gestation is not so insensible. For good reason, taking a newborn away from a fit mother seems an act of cruelty.

2 thoughts on Was there wisdom in the “tender years” doctrine

  1. TheDecider says:

    No. This outdated logic is dangerous to fathers and hurts children. Studies have proven that father do an equally (and in some better) job at raising kids.

  2. Debra R says:

    I believe 50/50 presumption is the best outcome for children of unwed or separated parents. It reduces the cost of litigation and has proved to decrease the number of false claims of domestic violence. I agree that a rational conversation about gender differences that recognizes natural law is needed in this country, but because women have fought so hard to break away from the societal norms of raising children, they should now step up and share parental rights and responsibilities without complaint. The idea that they are relegated to the home after bearing children is actually one of choice that takes place within the marital relationship, or joint parenting relationship. Otherwise, if they are single parents, they are both single parents and equal access to their children is reasonable and beneficial to the child.
    Studies show that the earlier the father is involved with his child, the greater his commitment is to the child. That makes as much sense and a mother breastfeeding, and thanks to the pump, she can do that successfully, provide the child with breastmilk on father’s parenting time, and return to the workforce instead of going on welfare when there is no absentee father.

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