Is the “Tender Years Doctrine” really dead in Rhode Island? The tender years doctrine is an outdated legal theory that while the children are young they should be placed with their mother. The tender years doctrine is NOT the law in RI, now. If you are involved in a custodial battle in Rhode Island family court, contact a Rhode Island child custody attorney. A Rhode Island child custody lawyer will help you get the justice you deserve and the legal help you need. (Updated May 25, 2025)
The “tender years doctrine” is a historical legal principle that favored mothers in custody cases involving young children, primarily those under the age of 7. It presumed that mothers were better equipped to care for young children due to their nurturing abilities and that it was in the child’s best interest to be with their mother. While the doctrine has largely been replaced by the “best interests of the child” standard, it’s important to understand its historical context and potential lingering influence in some jurisdictions.
The Tender Years Doctrine is not really the law in Rhode Island
The Tender Years Doctrine is not technically the law in Rhode Island. The seminal custody case in Rhode Island, PETTINATO v. PETTINATO 582 A.2d 909 (1990), sets forth the official RI laws concerning child custody of young children. Pettinato adopted “the best interest of the child standard*** for Child Custody determinations in Rhode Island Family Court.
Do not directly cite “the tender years doctrine” in Providence Family Court!
However, in the real world of Rhode Island Family Court “the Tender Years Doctrine” is far from dead. If you ask a 100 lawyers what the general standard for child custody cases they will cite Pettinato v Pettinato for the best interest of the child standard. But if you ask those same 100 RI divorce lawyers who would win a custody battle between a mother and father who are equally suitable parents, the vast majority would say the mother. In essence, in the real world, the tie goes to the mother especially when dealing with young children.
Tender Years doctrine still unofficially exists in some capacity in Rhode Island
However, the tender Years doctrine still unofficially exists in Rhode Island. It involves mothers having a distinct advantage in child custody cases involving young children from infants to 7 year old. This is an unspoken advantage for mothers in Rhode Island. This is an unspoken bias of some Rhode Island family Court Judges. This does not mean that mothers always get physical placement / physical custody of young children in Family Court.
If both parents request placement of a child and are roughly equal then typically the mother will win physical custody
There have been many cases when the father gets custody of a young child when the mother has drug and alcohol problems, mental health issues, a criminal record or neglects the child. The Rhode Island Supreme Court has had opportunities to shut the door on the old common law Tender Years Doctrine but has passed on shutting the door on at least two occasions. In the Loebenberg case, in 1956, the Rhode Island Supreme Court had an opportunity to shut the door on “the Tender Years doctrine” and 100 percent adapt the best interest of the child doctrine.
Loebenberg Court failed to completely debunk the tender years doctrine by using cryptic language
Surprisingly, the Loebenberg Court failed to completely debunk the tender years doctrine by using cryptic language insinuating that the tender years doctrine was a “general guide ” in making decision while officially adopting the best interest of the child standard. In LOEBENBERG v. LOEBENBERG, 127 A.2d 500 (1956), The Supreme Court of Rhode Island stated: “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 do what the Loebenberg Court refused to do and officially shut the door on the “tender years Doctrine”. Instead, the Bedard Court fueled the fire of those who believe that the Tender Years doctrine is alive and well in Rhode Island.
“It is well-settled that the best interests of the child remains 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 described the best interest of the child standard as “lode-star principle” but did not say it was the only principal. In Bedard, The RI Supreme Court Quoted Loebenberg’s “general guide” language. ***This court has held that child-custody awards must be made in the “best interest[s]” of the child. Petition of Loudin, 101 R.I. 35, 39, 219 A.2d 915, 918 (1966). Susanne argues that the trial justice’s custody award was not in accordance with the best interests of Gregory, Jr.
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.