Archive for the ‘Introduction to Albright: The Tender Years Doctrine’ Category

Introduction to Albright: The Tender Years Doctrine

Wednesday, January 10th, 2018

One of the more common misconceptions we hear from clients in our office is that there is an inherent bias toward the mother in child custody actions. While it is often true that the mother has been the child’s primary caregiver, there are still 11 other factors that courts weigh to make the decision that is in the child’s best interest. However, before these factors were spelled out in Albright v. Albright, Mississippi courts often made this decision with emphasis on the tender years doctrine.

The tender years doctrine basically stands for the idea that during a child’s “tender years” (birth to around 3 years old), that the child’s best interests were served by remaining with the mother. Under the common law, fathers had an absolute proprietary right to the custody of his legitimate minor children. Later, the law shifted and began to favor the mother. The case of Johns v. Johns established this presumption in Mississippi law, stating that “In all cases where any child is of such tender age as to require the mother’s care for its physical welfare it should be awarded to her custody, at least until it reaches that age and maturity where it can be equally well cared for by other persons.” Johns v. Johns, 57 Miss. 530 (1879). Of course, this seems closely related to breastfeeding. For many years, courts in many states followed this as a rule instead of a factor in custody.

Later, the tender years presumption came under scrutiny from courts around the United States. Some of the concern from courts came from the supposed discrimination against fathers in child custody cases based solely on their sex. The Mississippi Supreme Court recognized the decline in other state courts’ consideration of the tender years doctrine, noting that although the doctrine should not be disregarded, that other factors should be considered as well. These factors were outlined in the case of Albright v. Albright. In that case, the Court noted that while the age of the child was an important factor in the decision of the child’s custody, that it wasn’t rational to base that decision solely on age. Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983). Later in the opinion, the Court laid out the factors that should be considered in a child custody case, and those are the factors used to this day.

Our office often receives calls from people who are simply ill-informed about the decision-making of courts in child custody actions. Due to this, our office feels that people deserve to know what courts actually use to make that huge decision. Following this blog post, we will be publishing a new post about each of the factors considered when hearing the case from each party that will change that child’s life for good. If you or someone you know has a question about the Albright factors, or you’ve simply always heard that the child goes with the mother, call the Law Office of Matthew Poole. Our office has the knowledge of these factors and their application to answer any question you may have. Thank you, and please continue to read the rest of our Albright factor series that will be published over the coming weeks.