The 1970s was a decade of substantial changes in the law, including the prohibition of involuntarily committing citizens to a psychiatric institution if they were not a danger to themselves or others by the states, the determination that carefully crafted death penalty statutes might be constitutional, and the historic case of Roe v. Wade, whereby abortions were legalized throughout the United States. Despite these liberal advances in the areas of criminal and constitutional law, this was not a decade of progress in the family law arena, as the tender years doctrine was still being employed.
The Tender Year’s Doctrine is a legal principle that has existed since the late nineteenth century, and was widely employed in the 1970s. It presumes that during a child’s ‘tender,’ years, (age 13 and under), the mother should have sole custody of the child following a divorce proceeding. Today, almost 40 years later, it is still a common misconception that mothers should have sole custody of the children. But how have judges really been deciding custody issues in the most recent years of our country’s legal history?
In January of 2011, the Pennsylvania legislature enacted a statute to make uniform the factors a judge must consider when fashioning a custody order, notwithstanding the sex of the parent. The judge must consider the following 15 factors:
– Which party is more likely to encourage and permit frequent and continuing contact between the child and another party,
– The present/past abuse committed by a party or member of the party’s household,
– The parental duties performed by each party on behalf of the child
– The need for stability and continuity in the child’s education, family life, and community life,
– The availability of extended family,
– The child’s sibling relationships,
– The well-reasoned preference of the child, based on the child’s maturity and judgment,
– the attempts of a parent to turn the child against the other parent, except for domestic violence cases where reasonable safety measures are necessary to protect the child,
– Which party is more likely to maintain a loving, stable, consistent, and nurturing relationship with the child adequate for the child’s emotional needs,
– Which party is more likely to attend to the daily physical, emotional, developmental, educational, and special needs of the child,
– The proximity of the residences of the parties,
– Each party’s availability to care for the child or ability to make appropriate child-care arrangements,
– The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another, except in cases of protection from abuse,
– The history of drug or alcohol abuse of a party or member of a party’s household, and
– The mental and physical condition of a party or member of a party’s household.
Thus, the Tender Year’s Doctrine is now outdated, judges have been catching up, and fathers have just as equal a chance as mothers do when battling for custody of their children. SO FATHERS, KNOW YOUR RIGHTS AND BE HEARD!
