children; this argument was partially attributed to women’s lack of property rights and resources
during this time. 16
By the early 1900s, the law drastically shifted from favoring the father to favoring the
opposite parent. 17 The Tender Years Doctrine, which strongly favored mothers, quickly became
the favored approach in determining issues of child custody. 18 This doctrine marked the
commencement of a strong bias in favor of mothers that persists in cases of child custody to this
day. 19 The principle first originated and gained traction under the theory that the mother should
raise children under three years old, then subsequently custody should shift back again to the
father. 20 The philosophy was that mothers obtained the innate gift of showering small children of
“tender years” in the affection, nurture, and love they profoundly required. 21 Shortly thereafter,
the courts maintained that if the child’s innately nurturing mother were the superior parent for a
certain age range, her parenting would be superior to the father’s regardless of the child’s age. 22
Subsequently, the courts and the general public strongly presumed that, following a separation,
mothers should attain and maintain custody regardless of even the most obvious moral flaws and
character deficiencies. 23 In one instance, the court explained:
16 See SHANNON D. SEXTON, A Custody System Free of Gender Preferences and Consistent With the Best Interests
of the Child: Suggestions for a More Suitable Custody System, 88 KY. L. J. 761, 766 (2000).
17 See ELROD, supra note 12, at § 1: 6.
18 See generally Allan Roth, The Tender Years Presumption in Child Custody Disputes, 15 J. FAM. L. 423 (1976).
19 Robert Hughes, Jr., Are Custody Decisions Biased in Favor of Mothers?, THE HUFFINGTON POST, (Nov. 29,
2011), http://www.huffingtonpost.com/robert-hughes/are-custody-decisions-bia_b_870709.html; see SEXTON, supra
note 16, at 781-92.
20 See ELROD, supra note 12, at § 1: 5.
21 See Freeland v. Freeland, 159 P. 698, 699 (Wash. 1916).
22 See generally ELROD, supra note 12; See SEXTON, supra note 16, at 700 (“unless the mother was proven unfit,”
which is an extremely difficult standard, “the mother was awarded custody”).
23 See also Random v. Random, 170 N.W. 313, 314 (1918); Hines v. Hines, 185 N. W. 91, 92 (1921); Duncan v.
Duncan, 80 So. 697, 703 (Miss. 1919); McKay v. McKay, 149 P. 1032, 1032 (Or. 1915); Jenkins v. Jenkins, 181
N.W. 826, 827 (Wis. 1921); Phillips v. Phillips, 149 P.2d 967, 971 (Or. 1944); Shrout v. Shrout, 356 P.2d 935, 936
(Or. 1960); Bruce v. Bruce, 285 P. 30, 37 (Okla. 1930); Ellis v. Johnson, 260 S. W. 1010, 1012 (Mo. Ct. App. 1924).