Tender Years Doctrine

In custody litigation, mothers and fathers have an equal opportunity to obtain the custody of their children.  The tender years doctrine, whereby mothers were the preferred custodians of very young children, no longer exists.  In re Marriage of Kennedy, 94 Ill.App.3d 537, 545, 418 N.E.2d 947, 953, 49 Ill.Dec. 927, 933 (1st Dist. 1981), it was stated:

Changing social and legal trends have cast the tender years doctrine aside.  The doctrine rested on a sociological presumption that maternal affection is more active and better adapted to the care of the child than that of the father.  With the advent of new lifestyles for both men and women, however, the factual basis for the doctrine, if there ever was one, has vanished… The sex of the candidate for custody is but one of the many factors that may be considered in determining which parent receives the child.

Although mothers are no longer favored under the tender years presumption, courts may give added weight to the parent who served as the child’s primary care giver.  In practice, this often means a slight preference toward the mother.  In re Marriage of Dall, 191 Ill.App.3d 652, 548 N.E.2d 109, 138 Ill.Dec. 879 (5th Dist. 1989).

Other cases of interest include:

Jines v. Jines, 63 Ill.App.3d 564, 380 N.E.2d 440, 443, 20 Ill.Dec. 462 (5th Dist. 1978).
There is no rule or presumption in contested child custody cases favoring the mother over the father, rather, the increased recognition of the equality of the sexes has resulted in placing the parents on equal footing insofar as their rights to custody of a minor child are concerned.

In re Marriage of Ramer, 84 Ill.App.3d 213, 405 N.E.2d 401, 404, 39 Ill.Dec. 648 (5th Dist. 1980).
The presumption is no longer valid as a result of ongoing social and legal trends.

Marcus v. Marcus, 24 Ill.App.3d 401, 320 N.E.2d 581 (1974).
The fact that a mother is fit is only one facet of the situation, and standing by itself, does not authorize a denial of custody to the father when it appears necessary because of other considerations.

For additional information see Separation of Siblings Back to the Chicago Child Custody Lawyer home page