The Divorce Reform Act replaced the The Tender Years Doctrine in Ohio

In theory/according to Ohio statute, mothers and fathers have equal standing before a juvenile court or domestic relations court when seeking custody of their children (assuming that the father can prove paternity and has provided financial support for the child prior to the custody case). In reality, the presumptions that determine child custody decisions have changed over the years.

Under American law in the early 19th century (which was based upon English common law), fathers had an absolute right to custody of their children based on (1) their legal obligation to support their children and (2) the legal restrictions placed upon women (including mothers) during that era. A father’s parental rights were considered a property right that a father could even assign to a third party during his lifetime without the mother’s consent (see Blackstone’s Commentaries, p. 453).

This concept was first challenged in a 1763 English ruling by Lord Mansfield, who denied a father’s writ of habeas corpus for custody of his 18 year old daughter, who had been sold into prostitution after being apprenticed to a musician. Lord Mansfield emancipated the daughter, defying the convention up to that time that the father had an absolute right to custody and that mothers had no parental rights. Even though Lord Mansfield did not grant custody to the mother, he laid the common law groundwork for at least establishing a procedure by which custody did not always go to the father.

Lord Mansfield’s approach was not immediately accepted in England or America but over the next 100 years or so the presumption that the father must always be awarded custody disappeared as courts adopted the Tender Years Doctrine. The Tender Years Doctrine presumes that children are innately more bonded to their mothers than to their fathers, particularly when the children are very young (the “tender years”); this doctrine became a rebuttable presumption that any father had to surmount in order to obtain custody.

A major consequence of this presumption was that good, caring fathers could be almost completely shut out of their children’s lives unless they could prove that the mother of their children was “unfit.” The Tender Years Doctrine prevailed in most parts of the United States until well past the second half of the 20th century before many courts held that it violated the Equal Protection Clause of the Fourteenth Amendment.

In 1974, Ohio became one of the first states to formally abolish the Tender Years Doctrine by passing the “Divorce Reform Act,” which stipulated that the “best interest of the child” is the sole test for determining which parent should receive custody.

The relevant Ohio statute regarding “the best interest of the child” is Ohio Revised Code Section 3109.04, which lists 10 factors that must be considered by a court when determining “the best interest of the child” before rendering a child custody decision.

Contact Anne Harvey at if you have any questions about child custody issues.