Tender Years Doctrine

Tender Years Doctrine

___Applied
   Implicit in the court’s decision was the fact that the two children of the parties were of tender years, (10 years old, and 8 years and 9 months, at the time of the hearing), and that the maternal affection was better adapted to the care of the children.  People ex rel. Morris v. Morris
   While there will undoubtedly be unusual situations when the best interests of a young child dictate that custody be awarded to the father, under the facts award of custody of six year old boy to mother would be upheld.  People ex rel. Bukovich v. Bukovich
   Custody in the mother is preferred where small children, particularly daughters, are concerned, everything else being equal.  Strouse v. Strouse
   New conditions must arise to warrant change in circumstances and it is usual in custody cases, due to the tender years of the child and in consideration of its best interest, to entrust the care and custody to the mother, if a fit person.  Each case stands on its own facts.  Szczawinski v. Szczawinski
   For a case decided under the presumption of the Tender Years Doctrine, see Dunning v. Dunning
   It is usual in cases of custody of minor children to take into account the tender years of the child and in consideration of its best interests, to entrust its care and custody to the mother, she being a fit and proper person to rear the child.  Nye v. Nye
   Maternal affection, being more active, is better adapted to the care of a young child, especially in the case of a minor daughter, where the care and guidance of a mother’s hand is doubly important; compelling evidence must be presented proving a mother to be an unfit person, to cause the custody of her minor daughter to be denied her, or there must be a positive showing that to deny custody to the mother would be for the best interests of the child.  Nye v. Nye

___Not Applied
   Although the “tender year’s doctrine”, a presumption favoring the mother, has been abrogated in this state, the importance maintaining stability and continuity in a young child’s environment has been repeatedly emphasized.  Hall v. Hall
   Where there was evidence of the many times the mother left the children overnight and for extensive periods, that she resorted to intoxicants when real or imagined problems arose, and that she had intoxicants when real or imagined problems arose, and that she had a distaste and dislike for the confusing duties of a wife and mother to the point of running away from these duties on many occasions, the best interests of the children were served by granting custody of them to the father.  Wachowski v. Wachowski

___Not Inflexible
   There is today no inflexible rule which requires that custody of children, especially of tender age, be vested in the mother.  Marcus v. Marcus
   While it is usual to place small children in the care of their mother, this is not an inflexible rule, since the welfare of the child is the prime consideration.  Wachowski v. Wachowski
   For a case which states the tender years doctrine is not inflexible, see Wolfrum v. Wolfrum

___Presumption
   For a case decided under the presumption of the tender year’s doctrine, see King v. Vancil

___Validity
   The tender year doctrine, which recognizes that where all things are equal the best interest of a young child of tender years requires the care and custody of the mother, is no longer universally accepted.  Melear v. Melear
   The fact that a mother is fit, standing by itself, does not authorize a denial of custody to the father, when this appears necessary because of other considerations.  Marcus v. Marcus
   While giving custody to the mother may be the usual result of a custody hearing, there is no rule in Illinois that unless she is shown to be unfit, custody should be given to the mother.  Anagnostopoulos v. Anagnostopoulos
   In Illinois there is no arbitrary rule that unless there is evidence that a mother is unfit, she should have the custody of young children.  Carlson v. Carlson
   For a case discussing the validity of the tender year’s doctrine, see Stafford v. Stafford

Unmarried Parents
   Regardless of whether the parents have ever been married, the statutory factors listed in this section are relevant in determining a child’s custody.  Hall v. Hall
   In the application of the best interest of the child test to a custody dispute between unmarried parents, there is no longer a presumption in favor of either parent.  Giagoni v. Bourey

Visitation
   Modification of a visitation order was permitted when the modification would be in the child’s best interests, and thus, the trial court should have considered the best interest determination factors set forth to 750 ILCS 5/602 before deciding whether the mother’s petition to modify visitation to allow the mother and child to move to Florida should have been granted.  DeBillio v. Rodgers
   The fact that respondent had moved to this state, that she would not allow the children to visit another state, that the children’s father was confined to a wheelchair, that grandmother was able to travel to this state to visit her grandchildren with their father only at tremendous inconvenience due to her age and her husband’s inability to accompany her, all de established the inadequacy of visitation under a previous judgment.  Lyons v. Lyons
   A petition seeking visitation with a child who has been moved from one county to another is not an appropriate issue to be raised or decided on a motion to dismiss, and may properly be resolved by a hearing to determine what is in the child’s best interest.  Padin v. Padin
   Evidence of failure to visit is insufficient, of itself, to support a finding of unfitness.  Chick v. Massey
   For a case discussing custody and visitation, see Lawyer v. Lawyer
   When visitation rights are substantially decreased, it is such a change of condition that it does not, ipso facto, establish a base for a change in custody.  Johnson v. Johnson
   A grant of visitation rights of necessity involves a grant of “control” over a minor child.  De Phillips v. De Phillips
   A decree denying the right of visitation was temporary in character, and to alleviate a condition which had been contrary to the best interests of the children, and was designed to impress upon both of the parents that any visitation rights must be consistent with the best interests of the children at all times; therefore, the decree was not contrary to the best interests of the children.  Malone v. Malone
   Where the parties continually and repeatedly sought relief from the courts in connection with the custody of the minor children, brought the children into court on numerous occasions and conducted themselves in a manner which was contrary to the best interests of the minor children, it was the best interests of all the minor children that each of the parents did not have visitation periods with the child or children awarded to the other until the further order of the court.  Malone v. Malone
   In the absence of a constitutionally valid grandparent visitation statue, a non-custodial parent’s request that visitation be modified to permit grandparent visitation in lieu of the parent’s visitation while the parent was on active military duty was governed by Illinois common law, which allowed such modifications under special circumstances, including military duty; therefore, the trial court had subject matter jurisdiction over the parent’s modification petition and should have conducted a best interests proceeding.  In re Marriage of Sullivan

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