Tender Years Doctrine | Do Mothers Have Advantage Custody for young children?

In the old days, the mother of a young child had a significant advantage in obtaining physical custody of a young child in a child custody case in Rhode Island Family Court. This advantage was commonly referred to as the “Tender Years Doctrine.” Has the old “tender years doctrine” survived in RI Child Custody Feuds in Providence Family Court?  The seminal case of PETTINATO v. PETTINATO 582 A.2d 909 (1990) sets forth the official RI law concerning child custody of ALL children including young children, adopting “the best interest of the child” standard.*** If you ask 100 Rhode Island child custody lawyers in Rhode Island what the law is concerning child custody in RI, they will all say the “best interest of the child.” If you are need of a child custody attorney in RI, contact a RI child custody lawyer.

Many child custody attorneys in RI are asked the following questions:

  • Do Mothers Have an Advantage in Custody Disputes?
  • Do Mothers Seeking Custody Have an Advantage Over Fathers?
  • Do mothers have the upper hand in child custody disputes in Rhode Island?
  • Who has the advantage in a child custody battle in RI family Court?
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, vestiges  of the “the Tender Years Doctrine” may  still be 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 serious 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. Sammataro620 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.”

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.