Virginia Custody: A Brief History Lesson on the Tender Years Doctrine (Part 1)

It’s always fun to read old appellate court decisions.  These decisions often act as if their legal conclusions were obvious, and thus they often contain bold proclamations addressing a world that no longer exists (if it ever really existed in the first place).  These conclusions then get used as the basis of our law for years until someone realizes that the world has changed and therefore the law must change as well.  Mullen v. Mullen, 188 Va. 529 (Va. 1948), might be our court’s best example of this phenomena.

In that case, the court addressed, inter alia, whether the trial court abused its discretion in awarding primary physical custody of a 6 year old girl to her father.  Presumably, the trial court held in favor of the father because the mother was so emotionally unstable that she sought a divorce from her husband because he did not accommodate her request that they live outside his parent’s house, as discussed in Chief Judge Hudgins’s dissenting opinion:

            “We can only judge the future by the past. If this wife has so little conception of the dignity, obligations, and responsibilities of the marriage vows, how can a court with any degree of certainty decide that she will not regard the obligations and responsibilities of motherhood in the same light vein? A child needs not only love and affection, but it needs to be trained to meet the responsibilities of life, to be taught the sanctity of an obligation, obedience to those in authority, and an intelligent understanding of the verities of life. How can it be expected that this child will be so taught and trained in these fundamentals by an emotional, unstable mother who ignores them herself?”

On appeal, the majority found in favor of the mother, despite noting that its decision was quite difficult because the parties in this case were good people of excellent standing.  Indeed, it largely based its decision on the fact that while the father in this case would have to entrust the child’s daily care to the child’s paternal grandmother due to his successful career, the mother had all of the time in the world to continue to be the “good, patient, unselfish, understanding mother” that she had proven to be.   Yet, the appellate court apparently felt that these sensible reasons were insufficient to prove that the trial court’s decision was an abuse of discretion, so it went out on a limb with the following:

            “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.”

In other words, the court not only proclaimed that maybe its best that young daughters stay with their mothers, but basically created a rule out of this belief when there was no need to do so given that the facts of this case clearly cut in favor of the mother.  In fact, they created this rule while noting that their prior rule actually favored the right of fathers to the custody of their minor children per Old English common law. See, e.g., Carr v. Carr, 22 Gratt. (63 Va.) 168, decided in 1872, and Latham v. Latham, 30 Gratt. (71 Va.) 307, decided in 1878.  Moreover, they basically state that young people can better care for children than older people, which is an astonishingly broad statement given the fact that older people might have the benefit of actually having cared for children during their lifetimes.

Thankfully, much like the rule favoring awarding custody to fathers, the tender years doctrine proved to be relatively short lived as will be addressed in another blog post.