132 Children’s Legal Rights Journal [Vol. 37: 1 2017]
Mother love is a dominant trait in even the weakest of women, and as a
general thing surpasses the paternal affection for the common offspring, and,
moreover, a child needs a mother’s care even more than a father’s. For these
reasons courts are loathe to deprive the mother of the custody of her children24
This excerpt from the court clearly illustrates that in cases of child custody under the prevailing
influence of the Tender Years Doctrine, the legal system blatantly and unapologetically
discriminated based on gender. 25 While following this philosophy, the courts erroneously
presumed that even the foulest, most substandard mother - simply because of her gender - could
provide a child overwhelmingly more than even the best father could. 26
By the 1950s, the courts in over forty states had accepted and adopted the Tender Years
Doctrine. 27 Regardless of its growing approval and recognition among the courts, criticism
toward the doctrine grew by the 1970s. 28 Some states rightfully changed their view; they
reasoned that the Tender Years Doctrine further perpetuated gender-stereotypes. 29 Eventually,
the doctrine was held unconstitutional under the Equal Protection Clause granted by the 14th
III. MODERN APPROACH
Presently, there are two popular attitudes in determining child custody: the preference for
the primary caretaker and the preference for joint custody. 31
25 Id. SEXTON, supra note 16, at 769-770; See ROBERT J. BREGMAN, Custodv Awards: Standards Used When the
Mother Has Been Guilty of Adultery or Alcoholism, 2 FAM. L. Q. 384, 410 (1968).
27 See ELROD, supra note 12, at §1: 6.
30 See Pusey v. Pusey, 728 P.2d 117, 119-24 (Utah 1986).