The Better Chancery Practice Blog

It is an ancient principle embedded in Mississippi family law that if the mother of a child of tender years – especially a female – is fit, then she should have custody. Kyzar v. Kyzar, 248 Miss. 59, 157 So.2d 770 (1963); Brown v. Brown, 237 Miss. 53, 112 So.2d 556 (1959); Boswell v. Pope, 213 Miss. 31, 56 So.2d 1 (1952); Johns v. Johns, 57 Miss. 530 (1879).  The principle came to be known as the “tender years doctrine,” and over time it grew into a rule, eventually extended into to the generally-accepted wisdom that the mother was favored in child custody disputes.

As late as the 1980’s, the tender years doctrine exerted its hegemony.  One example is the remarkable case of Buntyn v. Smallwood, 412 So.2d 236 (Miss. 1982), in which the supreme court reversed a chancellor’s denial of a mother’s modification of custody where the mother had remarried and stabilized her situation and the father, who had custody from the divorce, worked offshore.  From the opinion, it appears that the father’s work situation had not changed at the time of the modification, but the mother’s situation had improved.  A Kramer vs Kramer-type situation, for sure.  The case illustrates just how strong a magnetic force the tender years doctrine exerted on our jurisprudence.

An early chink in the doctrine’s armor appeared not long after Smallwood in the case of Cheek v. Ricker, 431 So.2d 1139, 1145 (Miss. 1983), where the court stated that ” … it hardly seems rational that the age of a child should per se lead to any particular result.” 

Then came Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983), which enunciated the rule that the polestar consideration is the best interest of the child, and that a factor such as the age of the child was to be weighed along with other specified factors against what would be in the child’s best interest.  Even Albright, however, expressly rejected the idea that the tender years doctrine should be discarded.

In the years since, the doctrine has weakened further.  In Mercier v. Mercier, 717 So.2d 304, 307 (Miss. 1998), the court held that a child is no longer considered to be of tender years when it can be cared for by others.  In Copeland v. Copeland, 904 So.2d 1066, 1075 (Miss. 2004), the supreme court upheld the decision to award custody of a two-year-old boy to his father.  In Lee v. Lee, 798 So.2d 1284, 1289 (Miss. 2001), the court stated that a child four years of age was no longer of tender years.  In Torrence v. Moore, 455 So.2d 778, 780 (Miss. 1984), the court found that a seven-year-old child was “long past” tender years.     

In 2000, MCA § 93-5-24 was amended to add this language as subsection (7):  “There shall be no presumption that it is in the best interest of a child for the mother to be awarded either legal or physical custody.” 

Most recently, on May 3, 2011, the doctrine continued its fade in Kimbrough v. Kimbrough, at ¶ 37-38, where the COA upheld the chancellor’s finding that the Albright factor of the “Age, health and sex of the child” favored neither party.  The judge found that the parties’ five-year-old daughter was not of tender years and awarded custody of the child to the father.  The mother argued that the child was of tender years, and that she should have been favored.  The COA rejected her argument and upheld the chancellor’s award.          

If the tender years doctrine is not dead, it is at least moribund.  If you are still advising your clients that the mother is favored in custody actions, you need to do a little reading and re-examine your position.  Custody will be awarded to the fit parent who prevails on the Albright factors.