Does the “tender years” doctrine still apply in custody matters?

On Behalf of | Apr 20, 2018 | child custody | 0 comments

In Kentucky and many other jurisdictions throughout the country, child custody decisions are made based on the subjective interests of the children in question. That is to say, the best interests of the child guide how a court will resolve their custodial care following their parents’ divorce. Since different children have different needs, their custodial arrangements can take on very different forms.

However, there was a time when one parent had a stronger presumption of appropriateness for receiving custody of their children. It was assumed that mothers were more appropriate caregivers to their young children and therefore that they should be the ones to retain control over the kids once their divorces were finalized. This presumption was known as the tender years doctrine and though in some cases a mother may prove to be a better choice for custody than a father, there is no longer an assumption that mothers, generally, are better at taking care of their kids.

Courts will look at the physical, emotional and psychological needs of the children whose custody matters come before them. They may also entertain the children’s preferences for where they end up after their parents’ divorces, but a child’s preference regarding custody is not binding on a court.

Parents may agree to the physical and legal custody arrangements that they will have to follow after their divorces; in such cases, if the parent-created plans are sound courts may allow them to be executed and given judicially-enforceable. However, when parents cannot do this on their own they may rely on the determinations of the courts to establish plans that meet their children’s best interests.

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