Was there wisdom in the “tender years” doctrine

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.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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