The Tender Years Doctrine in Child Custody Cases Today

Learn About the Evolution of the Tender Years Doctrine Over the Years and How it is Applied in Child Custody Cases Nowadays in New Jersey

Throughout United States history, the rights of fathers and mothers when it comes to child custody have shifted. Originally, fathers were generally given sole custody of children in the case of divorce due to the fact that they were usually the primary income generators and providers, as women were neither allowed to work nor own property. In the early-mid nineteenth century, the feminist movement gave rise to women’s rights in custody cases. The British Custody of Infants Act of 1839 shifted custodial priority to mothers of very young children, and this law’s influence extended to the U.S., including New Jersey. Through this new perspective that children needed to be with their mothers, the tender years’ doctrine was born in the early twentieth century. The tender years’ doctrine held that young children under the age of four belong with their mothers, and the principle was used to determine custody in many New Jersey cases. In a move to a more equitable, gender-neutral approach to child rearing, the tender years’ doctrine has been replaced by consideration of the child’s best interests, though the principle’s influence can still be seen in some custody cases. Read on to learn more about the tender years’ doctrine, and how it still affects New Jersey child custody cases today.

Does the “Tender Years” Concept Still Apply to Child Custody Disputes in NJ?

The tender years’ doctrine is still applied in child custody cases, but only as a supplement to considering the child’s best interest. While it was used single-handedly in the past to award custody to mothers of very young children, the New Jersey Superior Court: Family Part will consider whether it is in the child’s best interest to be with their mother in their ‘tender years,’ reviewing a variety of gender-neutral factors.

What is the Cornerstone of Child Custody Cases?

In a shift away from gender-specific custodial principle, the New Jersey Family Part court and other U.S. judicial systems adopted the United Nations’ “best interests standard.” This standard utilizes a variety of factors to determine what type of custodial arrangement and visitation agreement would be in the child’s best interest, which the court holds to be the central pillar of any custody case. Factors to be considered in determining legal and physical custody include who has been the primary caregiver, proximity of each parent to the child’s primary home, parental income and employment and scheduling issues as such, the age and preference of the child, history of drug or domestic abuse, etc.

Challenging the Nature of the Tender Years’ Doctrine

Throughout the twentieth century and into the twenty-first, the tender years’ doctrine was used fairly sweepingly to grant child custody of children four years old and younger to their mother, largely regardless of other factors. In 2015, a New Jersey Appellate Division ruling challenged the sweeping nature of the tender years’ doctrine. In the case of Fisher v. Szczyglowski, the father was given shared custody and visitation rights to his 11-month old child, despite the fact that the mother was still breastfeeding. Because the father had played a large role in the child’s first months, the court ruled that it was in the child’s best interest for the father to maintain consistency of visitation and participation in his child’s life.

Are There Any Benefits and Drawbacks According to Gender Issues?

As Fisher v. Szczyglowski showed us, the New Jersey family court system takes a gender-neutral approach to determining the best interests of the child in a custody case. Still, the tender years’ doctrine is still taken into account when a very young child, especially one who is still breastfeeding, is at the center of a custody hearing. Application of – or at least reference to – the tender years’ doctrine supports a mother’s case in a custody hearing, while the gender-neutral best interests standard can support a father’s or mother’s case depending on reviewed factors.

Contact a Talented Brick Family Lawyer for Help Understanding the Tender Years Doctrine

Because the factors that determine a child’s best interest and therefore their physical and legal custody are largely subjective, and up to the scrutiny of the Superior Court: Family Part, it is important to have an expert child custody attorney on your side. Our team at Bronzino Law Firm has over a decade of experience helping mothers and fathers in Howell, Manalapan, Rumson, Toms River, Freehold, Middletown, Point Pleasant, and towns throughout Monmouth and Ocean County get full custody of their children, as well as swiftly coming to parental visitation plans and shared custody agreements that benefit the child and the parents. Contact us today at (732) 812-3102 to receive a free and confidential consultation regarding your child custody case.