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Custody

Bias Against Fathers

The legal climate is subject to change. Some liken the changing notions of justice to the swinging of a pendulum. Whatever analogy seems appropriate to you, the law and perceptions of fairness are perpetually changing. Family law is no different. Current beliefs and understandings are likely to be overcome by future knowledge, much as historical beliefs have been replaced by modern research. Historically in family law, due to bias against fathers, fathers may have been disadvantaged or on unequal footing when it came to matters involving children. This article will discuss the historical context for this belief and consider whether the bias against fathers continues to plague modern courts.

Tender Years Doctrine

Traditionally, in family law, there was a legal concept known as the “Tender Years Doctrine”. Essentially, the tender years doctrine was legal recognition of historical common “knowledge” that an especially young child would be better off in the hands of their mother. Largely, the doctrine was reflective of societal views that the primary role of a woman was that of a homemaker and/or mother. Due to the widespread belief that women were more capable of providing care and nurturing to young children, it resulted in a general bias against fathers, and in favor of mothers.

Further Developments

As is typical of common knowledge, societal understanding of an issue is subject to revisitation and revision. With subsequent research and study, a greater understanding of childhood development, and modernized psychological concepts, bias in favor of mothers was eventually undermined. It became clear that underlying foundational “knowledge” forming the basis for the tender years doctrine might not be scientifically supported. Therefore, as previous notions were invalidated, the law eventually followed suit. As a result, many jurisdictions have abandoned the tender years doctrine, and courts generally focus on parental rights, rather than determinations based upon gender.

Bias Today in Colorado

In Colorado, the tender years doctrine now is merely an unfortunate remnant of the past. In the Colorado Revised Statutes, it is specifically provided that, “In determining parenting time or decision-making responsibilities, the court shall not presume that any person is better able to serve the best interests of the child because of that person’s sex.” Therefore, the law directs courts not to apply the tender years doctrine or otherwise make determinations based upon a parent’s sex.

Residual Bias

Although the tender years doctrine has been cast aside in Colorado, this doesn’t necessarily mean that it isn’t alive (at least to some degree) today. Despite Colorado statutes militating against the application of gender bias in determinations of parental responsibilities, there continues to be the occasional residual bias.

Final Thoughts

Although judicial bias against fathers is largely a thing of the past, and despite the tender year’s doctrine being overridden by statute, occasionally fathers will fight an uphill battle when it comes to seeking to secure parental responsibilities. If you’re in the middle of a dispute regarding parental responsibilities, take the time to consult with an attorney. Here at Modern Family Law, we specialize in family law and we provide free consultations with our team of attorneys. Take the time to call us today for a free consultation and see what we can do to help you.

Posted June 21, 2017
by: MFL Team


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