The “tender years” doctrine or the “maternal preference” in child custody cases may soon be a thing of the past in the United States. In Florida, for example, a new law that is set to take effect in October 2008 expressly disallows any gender preference in the determination of child custody.
Historically, when spouses parted ways in the U.S. the archaic practice was to award custody of the common children to the father in the concept of property. Years after that, when most mothers took on the traditional role of housewife and caretaker of the children, the laws started to favor the mothers in what is now known as the “tender years” doctrine. This doctrine is also known as a maternal preference in child custody disputes because a child usually under primary school age is generally allowed to live with the mother.
The Family Code of the Philippines contains a similar preference for children below seven (7) years of age. Exceptions to the rule may be invoked by the father but he who alleges has the burden of proof to show that the mother is unfit to take care of the child.
In recent years, many states have decided to change their laws by eliminating the maternal preference in custody cases. In its place is the more fluid (to my mind) doctrine called “best interests of the child”. It is a legal animal that reminds me so much of “psychological incapacity” because of its lack of a clear and precise statutory definition. In Australia and in some states in the U.S., family law provisions merely provide a list of factors that a judge may consider in the determination of custody. These factors seem to level the field in the custody battle between both father and mother, perhaps with reason.
The emergence of the involved father.
While the housewife has evolved into a working mother, the paternal breadwinner has eventually been replaced by the “Denim Dad.” A Denim Dad is more likely to spend time at home with the kids and can easily be spotted wearing worn out jeans in lieu of the traditional white shirt and tie. More and more dads are seen at PTA meetings and school functions, while the moms are busy elsewhere. Fathers are no longer embarrassed to ask for parenting advice and parenting counselors have devoted substantial book paper on parenting guides.
Work equality is taking its toll on mothers.
Divorced mothers know this: A re-singled woman has to work in order to meet her child’s and her own needs. Finding a right balance between work and motherhood is extremely difficult if one does it on her own. A mother can be a good career woman or a good caretaker, hardly both.
The rising statistics of maternal unfitness.
It would have been easier for a mother to maintain her nurturing status if she had been faultless. While current statistics still show that a mother is granted child custody 80% of the time in the U.S., the other 20% who fail to keep their children with them are usually found unfit due to drug use, harmful behavior, sexual misconduct and of late, parental alienation syndrome.
Recent developments in family law and jurisprudence serve as a wake-up call to mothers. Unfortunate examples like Britney Spears may have spurred those changes in the law. Nevertheless, staunch advocates of fathers’ rights still feel that the battle is one-sided in favor of the mother. That’s about to change. Without the maternal preference rule written in the law, some mothers may one day find themselves complaining the way these divorce dads do now.
Child custody has become every separated parent’s dream battle.
It seems that letting the child choose is one dramatic event that vindicates one parent who may feel that the other parent deserves to be left behind by everyone, including the children.
Philippine laws adopt the “tender years” doctrine as a general rule because traditionally, it is the mother who stays at home and is the primary caretaker of the children. But over the years, the roles of father and mother have evolved so much that oftentimes there is a reversal of roles, where the mother may be the one bringing home the bacon while the father keeps house. While that may not be true for some, what is often the case is that women are more visible in the workfront these days that it may not be fair to say that the working mother is the primary caretaker.
This may explain why courts are not quick to apply the tender years doctrine especially when the father puts up a strong opposition to the mother’s preference. We have seen mothers deprived of their young children and more and more fathers given equal parenting time. But with older children, we often hear that perhaps the child has to make that choice who to live with. The question is: should the child even be given that choice?
When all the dust has settled and the wounds of a separation have turned into scars, a very thoughtful parent will tell you that making a child choose between two parents is like putting a child in the middle of a gunfight between the U.S. troops and Iraqi forces. There is no real victory after that crucial choice is made by the child. Any parent who is about to use a child or the children as pawns in the ongoing battle against an ex may well be reminded that:
- Children have a right to be with both parents.
- The child did not have a choice who to be born to, he/she should not be made to choose between the two.
- Children are too young to make difficult life changing decisions such as parental choices. Some things are best left to the parents who are presumed to know what’s best for the children.
- Choosing one parent over the other exposes the child to untold emotional and psychological suffering as the choice may lead one parent to reject the child or cause the child to experience feelings of guilt.
- The separation is not the child’s fault. Making the child choose passes the fight between parents to the child’s corner.
- Even if a child is vocal about his preference, a parent who is genuinely after the best interests of a child will admit that the child stands to benefit from the maintenance of close family ties with both parents.
There is a direct correlation between the rising number of marriage nullity cases and child custody battles. Aside from the usual squabble over the partitioning of conjugal or community assets, the matter of who gets the kids is usually a continuous source of animosity among former spouses.
In all custody, support and visitation issues affecting children, the paramount and inflexible criterion is the interest of the child. In child custody cases involving children below seven years of age, the mandatory provision to reckon with, is what is known as the TENDER YEARS RULE.
This rule is also known as the maternal preference rule because it states that, “No child under seven (7) years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.”
Thus, the law presumes that the mother is the best person to rear a child in the tender years.
In order to separate a young child from the mother, the father must go to court, allege the presence of a compelling reason against the mother, and prove the existence of such reason to the court.
What is a compelling reason varies from case to case. In some, the adultery of the mother was not sufficient to deprive her of her custody, while in another, the marital misconduct of the mother was taken into account. The relatively poorer status of the mother, as compared to the father’s, cannot be considered a compelling reason, if the mother’s source of income is sufficient to support her child. Drug abuse of the parent, however, seems to be compelling in all instances.
Where the child is an illegitimate one, the law automatically provides that custody of such is with the mother, consistent with the right of the child to use the surname of the mother.