The Tender Years Doctrine: A Free Pass For Unfit Mothers To Manipulate The Courts?
“The tender years doctrine suggests that “where a child is of such tender age as to require the care and attention that a mother is especially fitted [sic] to bestow upon it, the mother, rather than the father, is presumed to be the proper custodian, unless for some reason she is unfit for the trust.”48 This presumption ultimately established a maternal preference in the twentieth century, where, absent a showing of unfitness, the mother automatically received custody of children below a certain age. This policy eventually surpassed the paternal preference in child custody awards.”
from The disparity between men and women in custody disputes: Is joint custody the answer to everyone’s problems, bnet (Spring 1998)
While the tender years doctrine, which has been around since the 19th century, has at least on the surface given way to newer supposedly more progressive thinking such as the best interests of the child and the primary caregiver standards, based on actual data from the U.S. Census Bureau it appears that old habits or in this case ingrained doctrines are not easily relinquished by the courts.
In short, while fathers must pursue an uphill battle in terms of proving the mother to be an unfit parent before he is awarded primary custody, the mother need not prove the father unfit in order to win custody herself. Putting aside the fact that this is a direct violation of the Equal Protection Clause in the Fourteenth Amendment of the U.S. Constitution, one cannot help but wonder if this skewed view of parental capability leaves the courts vulnerable to manipulation by women with a hidden agenda?
For example, if you are inclined to accept the findings of psychiatrists Richard Gardner and Arthur Green, both of whom have developed theories that “mothers in custody disputes were likely to fabricate claims of sexual abuse and program children to lie about said abuse,” it is not a stretch to assume that our at times overburdened judicial system unwittingly falls prey to deceit.
One case that immediately comes to mind is that of a successful dentist who after meeting the woman who became his wife took up residence in Florida. During their time together, the couple had five children which, with the addition of two from the woman’s previous marriage, made for a supposedly happy and affluent family.
It was only through the hindsight of a contentious and costly divorce and custody battle, that the good doctor began to put the pieces together in terms of an historic pattern of behavior in which his former wife through the provision of false information to the courts had gained full custody of her first two children.
In fact, and as the story goes, she waited until her previous husband was out of the country on business before calling him and pushing his buttons in a way that only a master manipulator can, angering him to the point of telling her that if she “tried to take his children he would kill her.” To start, I do not condone the threatening tone by which the husband responded but suffice to say that when his children reached the age where they could make the decision as to with whom they would prefer to live the father won hands down. This was of course after the doctor contacted his ex’s former husband to let him know that she had changed their last name to his and, directed him as to where the children were now living.
Unfortunately, such a reunion between the doctor and his five children seems to be a far off dream of pensive anticipation that is more often than not obfuscated by a system that has for any number of reasons fallen for a convincing liar and drug addict – yes her cocaine addiction is one of the main reasons the marriage failed.
Based on interviews with involved parties, besides the fact that four judges have already recused themselves from the case, along with claims of being under the witness protection program the doctor’s former wife apparently presents a seductive presence that rivals that of the Gretta Scacchi charter in the movie Presumed Innocent. For those of you have seen the movie, you know about what I am talking.
As we continue our investigation into this as well as other cases in which the pure and honorable intent of Lady Justice’s blindness is lost in a world of high paying lawyers, tasked and impatient judges and litigants, who can at times be there own worst enemies, it is clear that the system is vulnerable to abuse by both men and women.
In the case of the Florida doctor, one can only hope that the slow turning wheels of justice will catch-up with his ex in much the same way that her former husband finally and thankfully caught up with his two children.