Courts disregard ‘tender years’ doctrine over shared parenting



The early childhood years can often create frustrating challenges for even the most loving and committed parents.

In legal parlance these early years of childhood were known as a child’s “tender years,” around which a gender-based doctrine of preferential parenting developed.

According to one source I reviewed, the “tender year’s doctrine” originated with an early (1813) Pennsylvania case which decided that a child of “tender years” required the special nurturing best provided by his or her mother.

Accordingly, the court, relying on this principle, awarded custody of the two children (aged ten and seven at the time of trial) to the mother.

Up until the 1960’s Canadian family courts continued to pay homage to the “tender year’s doctrine,” until the doctrine gradually began to fall into judicial disrepute in the late 1970’s and 1980’s.

That’s when society, followed by the courts, appeared to reject the stereotypical notion that only mothers could provide what’s best for young children.

The current legal focus, codified in BC’s Family Relations Act, is to attempt to determine what is in the child’s best interests when deciding matters of custody and access.

Factors such as the “health and emotional well being of the child,” and the “love, affection and similar ties that exist between the child and other persons” are required to be assessed “according to the child’s needs and circumstances.”

There’s no specific language to suggest or imply that young children are best raised by their mothers.

Considering the court’s repeated rejection of the “tender years doctrine,” and current legislation, I was recently stunned to hear a family court judge decide that a father should not have extended, or even overnight access, with his four-month-old daughter until the daughter was at least a year old.

It was a decision which could make sense, say for example, if the father was somehow deemed to be irresponsible, or the child had certain medical needs which the father was unable or unwilling to meet.

But this was certainly not the case. This father had already demonstrated his stability and responsibility by successfully exercising overnight, and extended access, with his daughter’s very young twin brothers.

I dearly hope that this decision is merely a unique aberration which will be corrected either on appeal or review, before any lasting damage is caused, because I firmly believe in the adoption of a “shared parenting doctrine.”

“Shared parenting” originates with the presumption that both parents should play an equal role in the parenting of the children after divorce or separation, rather than the current legal focus which emphasizes awarding custody to one parent.

Shared parenting does not necessarily mean that each parent would care for the children for one half of the time, nor would it be appropriate in certain circumstances such as domestic abuse.

But it would mean that two loving and responsible parents would be expected to work together to establish effective joint parenting strategies in the best interests of the children.

In my view it’s time we abolish any semblance of the “tender years doctrine” with what I would like to call the “best years doctrine,” namely our children, whatever their ages, need and deserve the best that two parents can give, whether married, separated or divorced.

Scott Taylor is a lawyer and legal analyst.