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Overcoming Gender Bias in Child Custody Cases: A reflection on the Outdated Maternal preference or tender age rule

The maternal preference rule, also known as the tender years doctrine, was a legal presumption that mothers should have custody of young children after divorce or separation. This doctrine embodied the sexist belief that mothers were innately better caregivers than fathers by virtue of being female. The rule has now been widely abolished due to changing social views on gender roles and recognition of its discriminatory nature. However, biases still linger in some child custody decisions.

In their 2006 article, legal scholars Laura Santilli and Michael Roberts provide an in-depth analysis of the maternal preference rule in America. They trace its origins to the early 19th-century cult of domesticity that venerated motherhood and situated women primarily in the private sphere as nurturers. As divorce rates rose in the late 1800s, judges turned to these gender stereotypes to determine that mothers should presumptively receive custody of children “of tender years” who needed sensitive caregiving. This entrenched differential treatment is based solely on gender.

Santilli and Roberts discuss how, from the 1970s onwards, feminist activists and fathers’ rights groups challenged the maternal preference rule for denying equal protection and due process by treating fathers as secondary parents based only on gender. Social views on parenting also evolved, with more egalitarian attitudes that recognized fathers’ desire and ability to nurture. In a landmark move, over 20 states abolished the tender years doctrine by the 1990s for its reliance on overbroad generalizations. However, studies still uncovered a maternal custody preference in practice.

Turning to South Africa, the maternal preference rule held no legal standing but influenced cultural assumptions. Traditional ideas of motherhood as central to African womanhood dovetailed with Western gender stereotypes. So when divorce and separation laws were codified after apartheid, lawmakers rejected incorporating a tender-year presumption. The Children’s Act 38 of 2005 explicitly directs against discrimination on enumerated grounds like gender and stresses that the child’s best interests are paramount in custody decisions.

The gender-neutral framework arose from South Africa’s unique history, where the migrant labour system often left women as sole caregivers. So instead of favouring mothers, the Children’s Act underscores preserving secure attachment relationships the child has formed with caregiving figures, including single fathers. This resonates with the psychological attachment theory that children need consistency from those fulfilling primary caretaking duties, regardless of gender.

While South African child custody law exhibits progress on paper, stubborn socio-cultural attitudes in practice still indulge maternal preference biases. Local studies reveal judges often award mothers custody (custody is known as contact and care in South Africa), especially for younger children under 7 years old, which are the formative and most vital years in a child’s life. Social norms are gradually shifting at a glacial pace, with more women in the workplace and expanded father involvement in childrearing. Rights education also continues.

Ultimately, the tender years doctrine embodied systemic matriarchal privileging of motherhood that caused tangible harm by categorically disfavoring fathers in child custody. Santilli and Roberts chronicle the rule’s rightful abolition in American law. Meanwhile, in South Africa’s post-apartheid jurisprudence, child custody deliberately eschews gender preferences by stressing children’s best interests based on their established caregiving bonds. Fathers, 4 Justice South Africa urges judges and child welfare officers to uphold this standard by evaluating parenting ability over identity to ensure substantive fairness. Analysis shows gender-equitable custody moving from formal legal principle to practical reality remains an ongoing endeavour against tenacious stereotypes in both contexts. Fathers have an equal and vitally important role to play in children’s upbringing from birth.

If anyone uses the maternal or tender age rule in your case, they are acting unethically and potentially illegally. The mother’s rights do not exceed those of the father and the child. We are all equal before the law; the child has an inherent right to 100% contact with both parents.

Are you being unreasonably denied contact with your children?
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2 thoughts on “Overcoming Gender Bias in Child Custody Cases: A reflection on the Outdated Maternal preference or tender age rule”

  1. Collen Digashu

    Does mother of my child have a right to block my bank account,even if I continuously paying maintenance every month?

    1. Hi Collen
      Without knowing all the facts, it is difficult to say.
      Please send us your email address so we can start the process of assisting you

      Thank you
      Fathers 4 Justice South Africa

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