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)

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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. Continue reading →