Once the law took root in England, the doctrine of the early years spread throughout the British Empire and was adopted by many other nations, including the United States. The law was expanded in 1873 to extend the presumption of maternal custody to age 16, although this change did not extend to the United States. In fact, the common law in the United States has lowered the “tender age” threshold to four years. For nearly 150 years, Illinois has had a related legal concept called the “doctrine of the tender years.” According to this doctrine, the standard custody position was that the mother would have custody of the child. Although the doctrine is long gone, its reasoning is still relevant and can be debated today in divorce courts. Because our society today is different from what it was in the 20th century, the guard had to be changed. The doctrine of the early years made a lot of sense when mothers stayed at home and fathers worked, but this is no longer the case today. This doctrine was gradually adopted in the United States after its first appearance in the English courts in 1839, and assumes that during a child`s early years from the age of thirteen and under, the mother should have custody of the child. The doctrine often arises in divorce proceedings. That said, although the doctrine of the tender years no longer applies to custody cases in the United States, the assumptions underlying the doctrine are still widely shared by many. It`s safe to say that most people, of course, assume that a mother is better suited to raising young children, even if they can`t explain why. Unfortunately, this means that this can be an uphill battle for fathers who want custody of their young children after a divorce. In the name of the gender equality debate, States have begun to determine that the presumption of tender age violates the equality clause of the Fourteenth Amendment.
In addition, paternal rights groups and feminists have sued, forcing many courts to abandon the idea that the mother is the preferred custodial parent. However, due to centuries of entrenchment in custody and family courts, it has been a constant struggle to put the needs of the child ahead of the remnants of the presumption of early years. The doctrine of tender age has been replaced in American and English common law by the assumption that the needs of the child should come first. Now, when determining custody, family courts are instructed to determine which parent can best meet the child`s needs. Statistically, mothers are still much more likely to have primary custody than fathers, but this is not due to precedent regarding the doctrine of early years. Given these factors, it could be argued that it is in the best interests of the child that the parent who performs most child care duties receive more parental leave because he or she provides the “loving care.” This was part of the reason for the doctrine of the tender years. The big difference is that, under Illinois law, these factors are only part of the analysis. whereas according to the doctrine of the early years, that was the whole analysis. Although the doctrine of tender age is no longer legally enforced in court, many believe that there is still a tendency to award custody to mothers, rather than fathers, and that fathers still have an uphill battle when it comes to obtaining sole custody of their children. In the United States, the tender age doctrine has been challenged on the grounds that it violates the equality clause of the Fourteenth Amendment to the United States Constitution. The courts have upheld this argument and the tender age doctrine has been gradually replaced by the “best interests of the child” doctrine of custody. The amendment first took shape in the courts and eventually found its way into state legislation in the 20th century.
Most critics of the family court system (and paternal rights groups in particular) deny that although early childhood adoption has been formally replaced by joint custody legislation and the best interests rule, it is still in practice and is still the means by which most custody cases are primarily decided at the national level. family courts (United States). In the context of family law, since the second half of the 19th century, there has been the doctrine of tender years or the presumption of tender years.