The Tender Years Doctrine: How This Extinct Law Can Be Used In Child Custody Cases Today

Allocating parenting time of an infant or young child can be quite challenging.  Often times, the mother and father will have serious disagreements regarding a parenting schedule.  This may be due to one parent, usually the mother, having done more caretaking of the child than the other parent.  A parent who has done most of the feeding, waking up in the middle of the night with an infant, bathing, etc., will most likely feel that it is best for the child that he/she have more parenting time than the other spouse.

For nearly 150 years, there was a related legal concept in Illinois called the “Tender Years Doctrine.” Under this doctrine, the default position on child custody matters was that the mother would have custody of the child.  Although the doctrine is long gone, its rationale is still relevant and can be argued in divorce courts today.

The Tender Years Doctrine stood for the notion that a child of “tender years” is to be with the mother because the mother can provide “tender care” to the child.  By the middle of the 20^th Century, Illinois Law stated the mother should have custody of the child unless she was unfit, which needed to be proven by the father.  By the 1970s, tender years were considered between the ages of 1 and 13.  By the early 1980s, social changes led to the rejection of the Tender Years Doctrine.  Consequently, Illinois adopted the “best interests of the child standard” to determine child custody issues.

Now, according to the Illinois Law, a court should consider all factors relevant to determine the child’s best interests, including, without limitation, the amount of time each parent spent performing care taking functions of the child in the two years preceding the case, the mental and physical health of the parents, the child’s needs, the ability of each parent to put the needs of the child ahead of his/her needs, and the ability of each parent to foster a close relationship between the other parent and the child.

Using these factors, one could argue that it is in the best interests of the child for the parent who completes most of the caretaking responsibilities to be awarded more parenting time because he/she provides the “tender care.”  This was partially the rationale for the Tender Years Doctrine.  The big difference is that under Illinois law now these factors are just part of the analysis, whereas under the Tender Years Doctrine, it was the entire analysis.

The Botti Law Firm, P.C. has been serving DuPage and Cook County residents for nearly 50 years (while the Tender Years Doctrine was still in existence). We have vast experience handling cases involving divorce. If you would like to speak to one of our experienced attorneys, please email us or call (630) 573-8585 to schedule a free consultation. 

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