Is “The Tender Years” doctrine still alive in RI Custody Battles?

Has the  old “Tender Years Doctrine” survived in RI Child Custody Feuds? PETTINATO v. PETTINATO 582 A.2d 909 (1990) sets forth the official RI law concerning child custody of young children adopting “the best interest of the child” standard***

RI child custody attorney

RI custody lawyers

The Tender Years Doctrine is not officially the law in Rhode Island

It is not wise to recite “the Tender Years Doctrine” to a Rhode Island Family Court Judge! However, “the Tender Years Doctrine” is still alive as a practical matter. The Tender Years doctrine in Rhode Island is the internal unspoken & undisclosed bias of Rhode Island Family Court Judges to award very young children to mothers. In Rhode Island, Mothers have a major advantage in custody cases involving young children from infants to 5 year old.

A mother is not always awarded Physical Custody of a Young Child in RI Family Court. If both parents are  fit and proper parents than the tie  usually goes to the mother.  Fathers are sometimes awarded  custody of a young child especially when the mother has alcohol or substance abuse problems, mental health disorders, a criminal history or abused the child.

Rhode Island Supreme Court in Loebenberg  failed to completely overturn the tender years doctrine

In the 1956 Loebenberg case, the RI Supreme Court did not  shut the door on “the Tender Years doctrine” and unequivocally adopt a the best interest of the child doctrine. Surprisingly, the Rhode Island Supreme Court in Loebenberg  failed to completely overturn the tender years doctrine. The Court used ambiguous language stating that the tender years doctrine was a “general guide” in making  custody decisions. However, In Loebenberg  the Rhode Island Supreme Court  adopted the best interest of the child standard for RI Child Custody Matters.

“It is well-settled that the best interests of the child remain the “lode-star principle”

“It is well-settled that the best interests of the child remain the “lode-star principle”  Loebenberg v. Loebenberg, 85 R.I. 115, 127 A.2d 500 (1956), The Court Determined that “The petitioner calls to our attention the cases holding that the mother being fit should have custody of young children, especially girls. We recognize this as a general guide in making a decision, but the controlling factor in cases between parents, as here, is always the best interest of the child for the time being. Kelley v. Kelley, 77 R.I. 229.”

In BERARD v. BERARD, 749 A.2d 577 (2000) The Supreme Court of Rhode Island again had another chance to shut the door on the “tender years Doctrine”.

“It is well-settled that the best interests of the child remain the “lode-star principle”

“It is well-settled that the best interests of the child remain the “lode-star principle” for determining child custody awards. Sammataro v. Sammataro, 620 A.2d 1253, 1254 (R.I.1993). In support of her argument that she should have been awarded custody of the children, defendant relies upon Loebenberg v. Loebenberg, 85 R.I. 115, 127 A.2d 500 (1956), for the proposition that a mother who is “fit” should have custody of young children, especially girls. We stated in Loebenberg that this was merely a “general guide,” and that the best interests of the child ultimately governed custody disputes. Id. at 120-21, 127 A.2d at 503.”

The Bedard Court did not say that the best interest of the child standard was the only principal to be used in Rhode Island Child Custody Disputes.

***Our Legislature has not statutorily defined the factors that compose “the best interests of the child” standard.Consequently in this state, the best interests of the child standard remains amorphous and its implementation has been left to the sound discretion of the trial justices. However, there are identifiable factors that must be weighed in the best interests of the child analysis when relevant. These factors include:

1. The wishes of the child’s parent or parents regarding the child’s custody.

2. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

3. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings, and any other person who may significantly affect the child’s best interest.

4. The child’s adjustment to the child’s home, school, and community.

5. The mental and physical health of all individuals involved.5

Wikepedia states that: “This common law doctrine presumes that during a child’s “tender” years (generally regarded as the age of thirteen and under), the mother should have custody of the child. The doctrine often arises in divorce proceedings.” Resources and Blogs by RI Child Custody Attorney, David Slepkow 401-437-1100:

Legal Notice per Rules of Professional Responsibility: The Rhode Island Supreme Court licenses all lawyers and attorneys in the general practice of law, but does not license or certify any lawyer / attorney as an expert or specialist in any field of practice.

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