Moving Past the “Tender Years” Doctrine

Long before Millennials were swiping left and right to find their future soulmates, the word “Tender” had a different meaning to family law professionals. Starting out in the late 1800s, the “Tender Years Presumption” gave a slant of favor towards mothers over fathers when determining who would obtain custody of young children. This legal doctrine enshrined moral and social judgment into the law regarding gender roles and parenting of young children.

Towards the end of the 20th century, the presumption fell out of favor as social science’s changed the understanding of parenting roles and with the rapid entrance of women into the workforce. Still, many judges unconsciously hold onto such biases in favor of a specific gender when it comes to many facets of the family structure. In 2015, Pew Research Center did a survey, Parenting in America, where it described the new face of the American Family. In the 1960s, 73% of all children were born into a family with two married parents in their first marriage. Today, that number is only 46%. Now, nearly four in ten births occur to women who are single or living with a non-marital partner. A full majority of new families in the United States arise from two parents in remarriage, cohabiting parents, single parents, or no parent families. Increasingly, women are the primary breadwinner in the family.

Healthy Parenting

The legal system has built its core functionality to deal with families that are no longer the rule, but the exception. As we progress into the 21st century, how should the law change to incentivize healthy parenting as it increasingly becomes less attached to marriage?

The states and the federal government have long provided an assortment of benefits to married couples with children, including a reduced tax burden. Through an incentive and disincentive based system, the assorted levels of government have created a carrot-and-stick method of pushing a model family structure that is now a minority when it comes to parenting. The days of the Tender Years presumption are gone.  Even as more segments of the population gain access to timeless institutions like marriage, a majority of children are being raised in unmarried households, often headed by one or several people.

A tax plan currently being considered in Congress would limit the amount of deductible income that a single, head of the household filer would be able to claim, thereby increasing the single parent’s tax bill. Avani Ramnani, the director of financial planning and wealth management at Francis Financial in New York described the head of household filing status as a benefit for divorced women, more significantly for those with dependent children.

Looking Forward

This isn’t the government’s first foray at using the law to guide the population into an idealized relationship. Prior to the 1970s, states did not allow for divorce absent faults, such as adultery, abandonment, or cruelty, and most favor the Tender Years presumption. Today, every state has passed no-fault divorce statutes making the dissolution of marriage more readily accessible and less stigmatized. As our system moves from a penalty-based push for marriage under the guise that it would best benefit children, how do we create an incentive-based system that is both efficient and puts the interest of children first?

We must recognize and ensure all benefits that are conferred to children of married couples are equally provided for those living in non-traditional families. If reforming the legal system is too daunting of a challenge, we must make it a habit to acknowledge and challenge the many existing biases. that put our own comfort ahead of the well-being of tomorrow’s families.

Modern Family Law

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