Historically, English family law gave custody of the children to the father after a divorce because the father is able to provide for the child. Until the 19th century, the women had few individual rights and obligations, most being derived through their fathers or husbands. In the early nineteenth century, Caroline Norton, a prominent social reformer author, journalist, and society beauty, began to campaign for the right of women to have custody of their children. Norton, who had undergone a divorce and been deprived of her children, worked with politicians and eventually was able to convince the British Parliament to enact legislation to protect mothers' rights, with the Custody of Infants Act 1839, which gave some discretion to the judge in a child custody case and established a presumption of maternal custody for children under the age of seven years maintaining the responsibility from financial support to their husbands. In 1873 the Parliament extended the presumption of maternal custody until a child reached sixteen. The doctrine spread in many states of the world because of the British Empire. By the end of the 20th century, the doctrine was established in most of the United States and Europe.
Tender years doctrine was also frequently used in the 20th century being gradually replaced towards the end of the century, in the legislation of most states, by the "best interests of the child" doctrine of custody. Furthermore, several courts have held that the tender years doctrine violates the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. Unfortunately, this doctrine is still used in many cases involving middle to low class minority families which have prompted family court reform similar to criminal justice reform.
In Europe
The Tender Years doctrine was gradually abolished in the majority of the states of the EU. In those states the joint custody is the rule after divorce or the separation of the parents. The Principles of the European Family Law regarding the parental responsibilities mention in clear that the two parents are equal and their parental responsibilities should neither be affected by the dissolution or annulment of the marriage or other formal relationship nor by the legal or factual separation between the parents.
Maternal preference versus tender years doctrine
Critics of the family court system, and in particular father's rights groups, contend that although the tender years doctrine has formally been replaced by the best interests of the child rule, the older doctrine is still, in practice, the means by which child custody is primarily determined in family courts nationwide. Despite this, in 1989 the Massachusetts Supreme Court’s Gender Bias Study reported that "Fathers who actively seek custody obtain either primary or joint physical custody over 70% of the time." However, others argue the 70% figure is extremely misleading because of its definition of joint custody being so broad as to include visitation rights among other issues. Critics maintain that the father must prove the mother to be an unfit parent before he is awarded primary custody, while the mother need not prove the father unfit in order to win custody herself, and that this is contrary to the equal protection clause.
