Heritage seems to be a watchword in Virginia these days. Heritage symbolized in statues, or flags, or skin tone. Our American justice system has its heritage, too. It is a roughly equal mix of ancient Roman law, British Common Law, and American innovation. Parental rights have walked the long path from Roman custom through British ancestry to today’s completely American and modern Constitutional interpretation. Today, kids, we have a history lesson.
The Tender Years Doctrine
Return with us now to England in the 1830s. Caroline Norton is advocating for women’s rights. She presses the argument that women, not men, should be granted sole custody of children in divorce. The 1839 law, Custody of Infants Act, shifted prevailing wisdom away from fathers and towards mothers for all children seven and under.
If a little change is good, a lot of change is better, right? In 1873, Parliament raised that age to 16, based on the concept of a child’s “tender years,” the formative years when a mother’s nurturing was supposedly more beneficial than a father’s care.
Akin to an infection (or a pandemic, perhaps?), the Doctrine spread first throughout the British Empire and then into the rest of Europe and America. For more than 100 years, Norton’s philosophy gripped American courts and families. Judges automatically assumed mothers were instinctively “better” parents for children in their tender years. Indeed, it was written into most state codes as law, giving judges little leeway to consider fathers.
Before Tender Years
What conditions was Norton reacting to? Before her sweeping reforms in the 19th century, English Common Law dictated the custom inherited from ancient Rome: fathers “owned” their children. A father had absolute right to their children as property.
This sounds harsh, almost barbaric, until you consider the legal conditions for women at the time. They had almost no rights, so the best way to protect children was to assign them as just so much chattel to their fathers. This gave fathers two duties:
- Legal obligation to care for their own children, no matter their marital status (children born out of wedlock [surprisingly common in a male-dominated society] were nevertheless to be financially supported by their fathers)
- A duty to protect and support the children’s mother (whether she was the man’s wife or not), on the supposition that she could not support herself and her children alone.
These two duties also gave men the right to assign their children to third parties without regard to the mother’s wishes. Unfortunately and tragically, some men abused these duties by selling their own children into prostitution, indentured servitude, or outright slavery. To moralists such as Lord Mansfield, this practice was outrageous.
Lord Mansfield in 1763 emancipated a young woman sold into prostitution. Her father apprenticed her to a musician, who then sold her for immoral purposes. The father attempted to regain custody, but Lord Mansfield denied both parents. This started the legal ball rolling for, eventually, recognizing a woman’s right to her own children.
We need to be careful not to judge our ancestors too harshly or through the lens of today’s morality. Neither extreme is ideal: the knee-jerk reaction to assign a child to a father or the well-meaning efforts to award custody to mothers.
Both the custom of treating children as property and the Tender Years Doctrine miss the point: a child is better parented by the better parent, regardless of gender.
Virginia law now provides a gender-neutral, Constitutional approach that respects everyone’s individuality and needs. Modern thinking recognizes the Equal Protections clause of the U.S. Constitution, codified in Virginia Code § 20-124.2:
“B. In determining custody, the court shall give primary consideration to the best interests of the child. The court shall consider and may award joint legal, joint physical, or sole custody, and there shall be no presumption in favor of any form of custody. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either. The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest.”
The Firm For Men focuses on family law for Virginia’s men. Feeling neglected by the courts, spurned by the media, and pushed aside by your kids’ Mom? We are here to help. We can help with child custody, child support payments, parenting time schedules, and much more. Contact our office or telephone us at (757) 383-9184 today!