This Comment examines a common presumption that arises in disputes between the natural parents of young children, the presumption that custody should be awarded to the mother. The author argues that this presumption is based on the perception of mothers as better custodians through their physical caretaking ability and cultural biases regarding the role of women in the family. The author argues that the tender years presumption violates the equal protection clause of the fourteenth amendment. The author explores and questions the basic assumptions behind the presumption and argues that there is a lack of factual support for the legislative or judicial opinion that mothers should be presumed better parents.
The Tender Years Presumption: Is It Presumably Unconstitutional,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol21/iss4/5