| Family law |
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| Family |
The tender years doctrine is a legal principle in family law since the late 19th century. In common law, it presumes that during a child's "tender" years (generally regarded as the age of four and under), the mother should have custody of the child. The doctrine often arises in divorce proceedings.
Historically, English family law gave custody of the children to the father after a divorce. Until the 19th century, women had few individual rights and obligations, most derived from 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. [1] In 1873, the Parliament extended the presumption of maternal custody until a child reached sixteen. [2] 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.
 | This section's factual accuracy is disputed .(October 2017) |
The tender years doctrine was frequently used in the 20th century but is gradually being replaced by the "best interests of the child" doctrine of custody through changes in state statutes . [3] Furthermore, several courts have held that the tender years doctrine violates the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. However, state courts still use the doctrine in many cases, which prompted family court reform similar to criminal justice reform. [4]
Most of the states in the EU have gradually abolished the tender years doctrine. In those states, the joint custody is the rule after divorce or the parents' separation. The Principles of the European Family Law regarding the parental responsibilities clarifies 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. [5]
Critics of the family court system, and in particular fathers' 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, how 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." [ citation needed ] However, others argue the 70% figure is highly misleading because its definition of joint custody was so broad as to include visitation rights, among other issues. [6]
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 to win custody herself, contrary to the Equal Protection Clause. [7]
Child custody, conservatorship and guardianship describe the legal and practical relationship between a parent and the parent's child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.
Paternity law refers to body of law underlying legal relationship between a father and his biological or adopted children and deals with the rights and obligations of both the father and the child to each other as well as to others. A child's paternity may be relevant in relation to issues of legitimacy, inheritance and rights to a putative father's title or surname, as well as the biological father's rights to child custody in the case of separation or divorce and obligations for child support.
Shared parenting, shared residence, joint residence, shared custody or joint physical custody is a child custody arrangement after divorce or separation, in which both parents share the responsibility of raising their child(ren), with equal or close to equal parenting time. A regime of shared parenting is based on the idea that children have the right to and benefit from a close relationship with both their parents, and that no child should be separated from a parent.
The fathers' rights movement is a social movement whose members are primarily interested in issues related to family law, including child custody and child support, that affect fathers and their children. Many of its members are fathers who desire to share the parenting of their children equally with their children's mothers—either after divorce or as unwed fathers—and the children of the terminated marriage. The movement includes men as well as women, often the second wives of divorced fathers or other family members of men who have had some engagement with family law. Many members of the movement are self-educated in family law, including child custody and support, as they believe that equally-shared parenting time was being unjustly negated by family courts.
Caroline Elizabeth Sarah Norton, Lady Stirling-Maxwell was an active English social reformer and author. She left her husband in 1836, who sued her close friend Lord Melbourne, then the Whig Prime Minister, for criminal conversation (adultery). The jury threw out the claim, but she failed to gain a divorce and was denied access to her three sons. Norton's campaigning led to the passage of the Custody of Infants Act 1839, the Matrimonial Causes Act 1857 and the Married Women's Property Act 1870. She modelled for the fresco of Justice in the House of Lords by Daniel Maclise, who chose her as a famous victim of injustice.
Joint custody is a court order whereby custody of a child is awarded to both parties. In the United States, there are two forms of joint custody, joint physical custody and joint legal custody. In joint physical custody, the lodging and care of the child is shared according to a court-ordered parenting schedule with equal or close to equal parenting time. In joint legal custody, both parents share the ability to make decisions about the child, regarding e.g. education, medical care and religion, and both can access their children's educational and health records.
In the United Kingdom and the nations of the European Union, parental responsibility refers to the rights and privileges which underpin the relationship between the children and the children's parents and those adults who are granted parental responsibility by either signing a 'parental responsibility agreement' with the mother or getting a 'parental responsibility order' from a court. The terminology for this area of law now includes matters dealt with as contact and residence in some states.
Child custody is a legal term regarding guardianship which is used to describe the legal and practical relationship between a parent or guardian and a child in that person's care. Child custody consists of legal custody, which is the right to make decisions about the child, and physical custody, which is the right and duty to house, provide and care for the child. Married parents normally have joint legal and physical custody of their children. Decisions about child custody typically arise in proceedings involving divorce, annulment, separation, adoption or parental death. In most jurisdictions child custody is determined in accordance with the best interests of the child standard.
The Family Law Act 1975,, is an Act of the Australian Parliament. It has 15 parts and is the main Australian legislation dealing with divorce, parenting arrangements between separated parents, property separation, and financial maintenance involving children or divorced or separated de facto partners. It came into effect on 5 January 1976, repealing the Matrimonial Causes Act 1961, which had been largely based on fault. On the first day, 200 applications for divorce were filed in the Melbourne registry office of the Family Court of Australia, and 80 were filed in Adelaide, while only 32 were filed in Sydney.
The Indian Child Welfare Act of 1978 (ICWA) is a United States federal law that governs jurisdiction over the removal of Native American (Indian) children from their families in custody, foster care and adoption cases.
The fathers' rights movement in the United States is a group that provides fathers with education, support and advocacy on family law issues of child custody, access, child support, domestic violence and child abuse. Members protest what they see as evidence of gender bias against fathers in the branches and departments of various governments, including the family courts.
The fathers' rights movement has simultaneously evolved in many countries, advocating for shared parenting after divorce or separation, and the right of children and fathers to have close and meaningful relationships. This article provides details about the fathers' rights movement in specific countries.
International child abduction in Japan refers to the illegal international abduction or removal of children from their country of habitual residence by an acquaintance or family member to Japan or their retention in Japan in contravention to the law of another country. Most cases involve a Japanese mother taking her children to Japan in defiance of visitation or joint custody orders issued by Western courts. The issue is a growing problem as the number of international marriages increases. Parental abduction often has a particularly devastating effect on parents who may never see their children again.
The fathers' rights movement in Australia focus on issues of erosion of the family unit, child custody, shared parenting, child access, child support, domestic violence against men, false allegations of domestic violence, child abuse, the reintroduction of fault into divorce proceedings, gender bias, the adversarial family court system and secrecy issues.
A gatekeeper parent, in legal setting, is a parent who appoints themself the power to decide what relationship is acceptable between the other parent and the child(ren). The term is broad and may include power dynamics within a marriage or may describe the behaviors of divorced or never married parents.
Gronow v Gronow, was a decision of the High Court of Australia.
The Custody of Infants Act of 1839 was an Act of the Parliament of the United Kingdom. The bill was greatly influenced by the reformist opinions of Caroline Norton. Norton had a failed marriage with her husband. Her pamphlets arguing for the natural right of mothers to have custody of their children won much sympathy among parliamentarians. The need for the reform in the custody of children area had already been the subject of parliamentary actions before 1839. However, because of Norton's intense campaigning, Parliament passed the Custody of Infants Act 1839 and included there many of her reformist ideas. This changed dramatically the way that custody of the children after divorce was granted. If previously in the majority of the cases the child custody was awarded to the father, the Custody of Infants Act of 1839 permitted a mother to petition the courts for custody of her children up to the age of seven, and for access in respect of older children. This was the starting point of a new doctrine in the area of child custody, called Tender years doctrine.
Joint custody is a form of child custody pursuant to which custody rights are awarded to both parents. Joint custody may refer to joint physical custody, joint legal custody, or both combined.
Stanley v. Illinois, 405 U.S. 645 (1972), was a landmark United States Supreme Court case in which the Court held that the fathers of children born out of wedlock had a fundamental right to their children. Until the ruling, when the mother of a child born out of wedlock was unable to care for the child, through death or other circumstances, the child was made a ward of the state and either placed in an orphanage or foster care or given up for adoption.
Edward Kruk is a Canadian sociologist and social worker. He has conducted internationally recognized research on child custody, shared parenting, family mediation, divorced fathers, parental alienation, parental addiction, child protection, and grandparent access to their grandchildren. Kruk is an associate professor of social work at the University of British Columbia. He is the founding president of the International Council on Shared Parenting.
Many courts consider the maternal preference doctrine to be gender discriminatory. The Supreme Court of Alabama, for example, held that "the tender years presumption represents an unconstitutional gender-based classification which discriminates between fathers and mothers in child custody proceedings solely on the basis of sex. "