I wrote earlier today about the rise of the tender years doctrine, which our commonwealth’s highest court originally put as follows:

            “It is now generally recognized that the mother is the natural custodian of her child of tender years, and that if she is a fit and proper person, other things being equal, she should be given the custody in order that the child may receive the attention, care, supervision, and kindly advice, which arise from a mother’s love and devotion, for which no substitute has ever been found.  Human experience supports the policy that young children should not be deprived of the care of their mothers and of their love and tenderness, which may be counted upon most unfailingly. Experience also teaches that children grow up more normally when reared by young people rather than older people.

             Accordingly, it has been held that children of tender age, especially girls, will be awarded to their mothers, if fit and suitable; and that where no injury or disadvantage will result to the child, the feelings of the maternal parent must be given consideration.”  Mullen v. Mullen, 188 Va. 529 (Va. 1948)

If you look closely, you will see some possible internal inconsistencies in the court’s comments above.  In the first paragraph, it states mothers should be awarded primary physical custody of young children if “other things [are] equal.”  In the second paragraph, it seems to state that mothers should be awarded primary physical custody of young children if they are “fit and suitable.”  So what’s the actual rule?

It turned out that the rule required all things to be equal before giving the tie-breaker to mothers.  However, the Virginia General Assembly wanted to abolish this presumption so it enacted Virginia Code § 31-15 (Repl. Vol. 1973), which stated that there shall be no presumption in favor of either parent.  Undaunted, our highest court decided to keep on the tenders years doctrine as a mere inference, as outlined below in Leisege v. Leisege, 223 Va. 688 (Va.1982):

            “When a child is of “tender years,” the court performs a two-fold analysis. First, it determines whether both parents are fit. If only one is fit, the court awards the child to that parent. If both are fit, the court moves to the second step in its analysis. It considers whether all other things are equal.  McCreery v. McCreery, 218 Va. 352, 237 S.E.2d 167 (1977). Among other things, it considers the environment and circumstances surrounding each proposed home. Id. If the court finds the home environments equal, then an inference arises that the mother should care for the young child. Harper v. Harper, 217 Va. 477, 229 S.E.2d 875 (1976).” (emphasis added)

One year later in 1983, the Virginia General Assembly finally got its way.  It killed off the tender years doctrine by amending Virginia Code § 31-15 to state that there shall be no presumption or inference in favor of either parent when determining custody.  See, e.g., Visikides v. Kerr, 3 Va. App. 69 (Va. App. 1986).

So there you have the tender years doctrine: born under suspicious circumstances in 1948, gravely wounded around 1976, finally killed in 1986, and lingering on in spectral form to this very day, what with fathers often coming to our offices wondering if they have a shot at primary physical custody, and the occasional mother acting as if she will obviously be awarded primary physical custody because she’s the mother.