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.

Scacchi character - beautiful, smart, seductive and . . . ultimately poison!

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.


4 Responses to “The Tender Years Doctrine: A Free Pass For Unfit Mothers To Manipulate The Courts?”
  1. fielding dent says:

    I disagree. Well written though!

    • Consensus of course is not the goal when I write Fielding . . . what is the old board room saying “if both of us agree on everything, then one of us is redundant?!”

      Whether in agreement or not, I appreciate as always your comments and perspectives.

      • fielding dent says:

        Thank you! Yes i agree with your statement on disagreeing. Agreeing to disagree is a skill.
        Yes, I agree with your initial statement as well. What you put forth here does provoke thought and conversation.

        As far as these two “psychologists” that produced some study that essentially said “Women make things up to gain custody” to paraphrase. Sounds ridiculous to me. As if men don’t “make things up”….Humans don’t make things up????

        Simply by virtue of someone’s sex (Kramer v. Kramer)— perhaps ought not decide matters of custody…neither ought one’s JOB TITLE or lack thereof! To smear someone due to their personal life is heinous ….to be placed in the court of public opinion, to be judged based upon these things of a personal nature..her dealings with her ex-husband…her habits…her associations.. or non-associations…does this really say who is the better parent?

        Further, I do not believe what the children “want” is necessarily what’s best for them. There were most likely reasons beyond “who gave birth” here….for her to of retained custody before. Perhaps some key factors did not come out in court.

        There was a case involving a well known actor that was accused of killing his wife….in this case his attorneys tried her on her “jaded past” and her slandered this deceased woman as being an unscrupulous whore. Very sad indeed. If he indeed did murder his wife….and all physical signs pointed to this….even taking into account that perhaps she was a “shady” character…this was no excuse for murder! As in the case of prostitutes being murdered. I think that they have the same rights the rest of us do. The basic right to live.

        And no one should ever dismiss individuals as being less or more important due to their chosen profession. And further….I think we need to think about “what” criteria do we use insofar as “who” is the better parent. What makes a good parent? What standards do we use? What do we base this on?

      • You touched on something that is of vital importance in that each case needs to be judged on its own merits re who is the better parent based on a set of criteria that is substantiated by hard data or research as to the outcome re raising a happy, healthy and responsible adult.

        I think that the big problem is the broad application of unproven conclusions such as with the tender care doctrine which then gets ramrodded through an overtaxed judicial system that has little time to get to the truth, and therefore relies on anecdotal observations as opposed to well-researched facts.

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