DOCSLIB.ORG

Overview of Virginia Supreme Court Cases on Domestic Relations: 1970-1980 Peter N

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Overview of Virginia Supreme Court Cases on Domestic Relations: 1970-1980 Peter N University of Richmond Law Review Volume 15 | Issue 2 Article 6 1981 Overview of Virginia Supreme Court Cases on Domestic Relations: 1970-1980 Peter N. Pross University of Richmond Follow this and additional works at: http://scholarship.richmond.edu/lawreview Part of the Courts Commons, and the Family Law Commons Recommended Citation Peter N. Pross, Overview of Virginia Supreme Court Cases on Domestic Relations: 1970-1980, 15 U. Rich. L. Rev. 321 (1981). Available at: http://scholarship.richmond.edu/lawreview/vol15/iss2/6 This Note is brought to you for free and open access by UR Scholarship Repository. It has been accepted for inclusion in University of Richmond Law Review by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. NOTE OVERVIEW OF VIRGINIA SUPREME *COURT DECISIONS ON DOMESTIC RELATIONS 1970-1980* I. Introduction ........................................... 322 I. Annulment and Divorce ................................ 323 A. Annulm ent ........................................ 323 B . D ivorce ........................................... 325 1. Grounds for Divorce ............................ 325 2. Defenses to Divorce ............................. 330 3. Jurisdiction over Alimony, Child Support and Property ....................................... 331 4. Separation Agreements and Property Settlements 340 5. Alimony or Support and Maintenance of Spouse 345 6. Child Custody .................................. 355 7. Child Support Orders ........................... 361 8. Enforcement of Maintenance and Support Decrees 364 Ill. The Fam ily ............................................ 366 A. Illegitimate Children ............................... 366 1. Child Support Orders ........................... 366 2. Workmen's Compensation Death Benefits ......... 369 3. Wrongful Death Benefits ........................ 371 B. Termination of Parental Rights and Adoption ........ 372 1. Introduction ................................... 372 2. Dual Approach Followed in Custody and Adoption Proceedings .................................... 374 3. Parental Intervention in Adoption Proceedings .... 376 4. Termination of Residual Parental Rights ......... 377 C. M iscellaneous ...................................... 379 1. Name Changes of Married Women ............... 379 2. Name Changes of Children of Divorced Parents ... 382 IV. Conclusion ............................................ 383 * The student contributor is Peter N. Pross. UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 15:321 I. INTRODUCTION The Supreme Court of Virginia examined a variety of domestic rela- tions problems and issues during the last decade. Most of the court's de- cisions involved divorce issues such as jurisdiction, alimony or support and maintenance, and child custody or support orders. However, the court also decided cases on annulment, the enforcement of support and maintenance decrees, legitimacy and paternity, adoption, name changes and intrafamily tort immunity.1 1. The decisions by the Virginia Supreme Court regarding intrafamily tort immunity will not be discussed in the text of this note. It should be noted, however, that the court has not abolished the doctrine. See Wright v. Wright, 213 Va. 177, 191 S.E.2d 223 (1972) (parental immunity upheld in action by unemancipated child against father for alleged acts of simple negligence not related to his business or vocation and not involving a motor vehicle). See also Counts v. Counts, - Va. , 266 S.E.2d 895 (1980) (wife immune from liability in tort for personal injuries intentionally inflicted upon her husband at her direction during their marriage). The 1981 Virginia General Assembly significantly negated the holding in Counts, however, by abolishing the common-law defense of interspousal immunity in causes of ac- tion in tort arising on or after July 1, 1981. 19- Va. Acts, ch. - (to be codified at VA. CODE ANN. § 8.01-220.1). Rather than abrogate the doctrine of intrafamily tort immunity, the court has chosen to create several narrow exceptions. See Korman v. Carpenter, 216 Va. 86, 216 S.E.2d 195 (1975) (action for wrongful death may be maintained and predicated upon injuries to one spouse arising out of wrongful act by the other spouse, when such act terminates marriage by death, and when the deceased spouse is survived by no living child or grandchild); Sur- ratt v. Thompson, 212 Va. 191, 183 S.E.2d 200 (1971) (interspousal immunity abolished in actions for personal injuries resulting from motor vehicle accidents); Smith v. Kauffman, 212 Va. 181, 183 S.E.2d 190 (1971) (parental immunity abrogated in automobile accident litigation). The court has likewise declined to construe liberally these exceptions to immunity. See McMillan v. McMillan, 219 Va. 1127, 253 S.E.2d 662 (1979) (Surratt exception to inter- spousal immunity not applied in action by wife when automobile accident occurred in Ten- nessee and that state had not abrogated doctrine); Tyles v. Jackson, 216 Va. 797, 223 S.E.2d 873 (1976) (Smith exception to parental immunity did not have retrospective effect); Foun- tain v. Fountain, 214 Va. 347, 200 S.E.2d 513 (1973) (Surratt exception did not have retro- spective effect). The court's policy of preserving family and marital harmony through the application of intrafamily tort immunity is contrary to the modern trend of abrogating the doctrine. A majority of states have completely or partially abandoned intraspousal and pa- rental immunity. See Annot., 92 A.L.R.3d 901 (1979); Annot., 41 A.L.R.2d 904 (1972). See also Sanford, Personal Torts Within the Family, 9 VAND. L. REv. 823 (1956); Comment, IntrafamilyImmunity-The Doctrineand Its Present Status, 20 BAYLOR L. REv. 27 (1967). See generally W. PRossmR, HANDBOOK OF THE LAw OF ToRTs § 122 (4th ed. 1971). It should also be noted, however, that the Virginia Supreme Court has permitted one spouse to testify against the other spouse in certain criminal proceedings. See Cumbee v. Commonwealth, 219 Va. 1132, 254 S.E.2d 112 (1979) (wife permitted to testify against her husband during prosecution of husband for incest against their minor daughter); Stewart v. Commonwealth, 219 Va. 887, 252 S.E.2d 329 (1979) (husband convicted ot grand larceny of wife's personal property and wife permitted to testify against her husband because couple 1981] DOMESTIC RELATIONS NOTE The purpose of this note is to provide a reference guide for the Virginia practitioner regarding the supreme court's decisions during the past dec- ade. Although the scope of this note necessitates limited analysis, rele- vant cases, statutes and supplementary materials have been cited for fur- ther reference purposes. For organizational purposes, the court's decisions have been discussed under the major headings of ANNULMENT AND DIVORCE and THE FAMILY. II. ANNULMENT AND DIVORCE A. Annulment There were only two decisions by the Virginia Supreme Court between 3 1970 and 1980 which concerned annulment.2 In Sanderson v. Sanderson, the husband sought an annulment of his marriage on the ground of mis- representation. Mr. Sanderson alleged that his wife falsely represented before their marriage that she had been previously married and divorced only once, when in fact she had been married and divorced five times. The supreme court affirmed the trial court's denial of the annulment and held that a misrepresentation as to prior marital status was not grounds for annulment.4 This decision is in line with the weight of authority.5 In McConkey v. McConkey,6 the Virginia Supreme Court determined that a divorced wife is not entitled to reinstatement of alimony payments 7 from her first husband upon annulment of her voidable second marriage. The court examined Code section 20-1108 and distinguished between voidable marriages9 and those void ab initio.10 This distinction is impor- not validly married at time of trial); Osborne v. Commonwealth, 214 Va. 691, 204 S.E.2d 829 (1974) (actions of husband, charged with statutory rape of his stepdaughter, in beating wife, did not constitute "privileged communications" within meaning of statute). 2. For the various statutory grounds for annulment, see VA. CODE ANN. § 20-89.1 (Cum. Supp. 1980). 3. 212 Va. 537, 186 S.E.2d 84 (1972). 4. Id. at 537, 186 S.E.2d at 85. 5. Reynolds v. Reynolds, 85 Mass. (3 Allen) 605 (1862), is the leading early authority for the view that fraud must relate to the "essentials" of marriage (e.g., ability to consummate the marriage and to have children) in order to constitute grounds for annulment. For a contemporary decision relying on Reynolds, see Masters v. Masters, 13 Wis. 2d 332, 108 N.W.2d 674 (1961). See generally cases collected in Annot., 15 A.L.R.3d 759 (1967). 6. 216 Va. 106, 215 S.E.2d 640 (1975). 7. The annulment was based on fraud by the wife's second husband. As a result, the marriage was voidable if the wife desired to have it annulled. Id. at 107, 215 S.E.2d at 641. 8. VA. CODE ANN. § 20-110 (RepL Vol. 1975) provides: "If any former spouse to whom support and maintenance has been awarded shall thereafter marry, such support and main- tenance shall cease as of the date of such marriage." 9. Voidable marriages enjoy legal validity until annulled because the aggrieved spouse UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 15:321 tant because the court expressly refrained from deciding whether Code section 20-110 "would apply to a person to whom alimony has been awarded who thereafter is involved in a void marriage."" The supreme court's decision in McConkey follows the
Load more

Recommended publications
  • Parental Separation and the Child Custody Decision: Toward a Reconception
    The Peter A. Allard School of Law Allard Research Commons Faculty Publications Allard Faculty Publications 1989 Parental Separation and the Child Custody Decision: Toward a Reconception David G. Duff Allard School of Law at the University of British Columbia, [email protected] Roxanne Mykitiuk Follow this and additional works at: https://commons.allard.ubc.ca/fac_pubs Part of the Family Law Commons Citation Details David G Duff & Roxanne Mykitiuk, "Parental Separation and the Child Custody Decision: Toward a Reconception" (1989) 47:3 UT Fac L Rev 874. This Article is brought to you for free and open access by the Allard Faculty Publications at Allard Research Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Allard Research Commons. Parental Separation and the Child Custody Decision: Toward a Reconception DAVID G. DUFF AND ROXANNE MYKITIUK Contemporary debates regarding the appropriate way to resolve custody and access disputes reflect deeply rooted conceptions of both the family and the proper relationship between the family and the state. The prevailing "best interests ofthe child" test and judicial presumptions favouring sole custody embody a traditional definition of the family and a communitarian image of familial relationships. Conversely, current joint custody legislation adopts a liberal-contractualparadigm, in which the family is viewed as a joint partnership and children are conceived as assets to be equally divided upon termination ofthe spousal relationship. The authors reject both notions of the family and the standards for custody determination associated with each. Instead, they advance a feminist vision of the family and a feminist approach to the resolution ofaccess and custody disputes.
    [Show full text]
  • The Crisis of Child Custody: a History of the Birth of Family Law in England, 11 Colum
    University of Florida Levin College of Law UF Law Scholarship Repository Faculty Publications Faculty Scholarship 1-1-2002 The rC isis of Child Custody: A History of the Birth of Family Law in England Danaya C. Wright University of Florida Levin College of Law, [email protected] Follow this and additional works at: http://scholarship.law.ufl.edu/facultypub Part of the Common Law Commons, Family Law Commons, and the Women Commons Recommended Citation Danaya C. Wright, The Crisis of Child Custody: A History of the Birth of Family Law in England, 11 Colum. J. Gender & L. 175 (2002), available at http://scholarship.law.ufl.edu/facultypub/219 This Article is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. THE CRISIS OF CHILD CUSTODY: A HISTORY OF THE BIRTH OF FAMILY LAW IN ENGLAND DANAYA C. WRIGHr Ask-may the victim of a hasty vow Ne'er seek release nor remedy? Ah no! A maiden once enclosed in nuptial ties Must wear herfetters till she sins or dies; And suffer as she may, within these bounds, No curefor sorrows and no balm for wounds. Such finished torture England'scode can boast; A formalframework, which at woman's cost, Flings a disguise o'er ruthless tyranny, And drugs men 's conscience with a special tie. 1 -Harriet Grote (1853) Associate Professor of Law at the University of Florida's Levin College of Law.
    [Show full text]
  • Financial Equality in Marriage and Parenthood: Sharing the Burdens As Well As the Benefits
    Catholic University Law Review Volume 29 Issue 3 Spring 1980 Article 11 1980 Financial Equality in Marriage and Parenthood: Sharing the Burdens as Well as the Benefits Agnes Pek Dover Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Agnes P. Dover, Financial Equality in Marriage and Parenthood: Sharing the Burdens as Well as the Benefits, 29 Cath. U. L. Rev. 733 (1980). Available at: https://scholarship.law.edu/lawreview/vol29/iss3/11 This Notes is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. FINANCIAL EQUALITY IN MARRIAGE AND PARENTHOOD: SHARING THE BURDENS AS WELL AS THE BENEFITS Gradual judicial rejection of years of socially accepted sex discrimina- tion has enabled women to increase dramatically their economic indepen- dence both within and without the home.' Historically, courts have been reluctant to impose financial responsibilities on women. On the premise that women were innately less competent to function independently in the business world, courts excluded women from certain male-dominated pro- fessions2 as well as from specific civic3 and employment-related4 obliga- tions borne by men. Judicial reluctance to require women to assume duties formerly performed by men alone has also colored domestic rela- tions law. Traditionally, the burdens of alimony5 and spousal support6 1. A number of classifications based on sex have been declared unconstitutional under the equal protection clause of the fourteenth amendment.
    [Show full text]
  • Breastfeeding in Custody Proceedings: a Modern-Day Manifestation of Liberal and Conservative Family Traditions
    BREASTFEEDING IN CUSTODY PROCEEDINGS: A MODERN- DAY MANIFESTATION OF LIBERAL AND CONSERVATIVE FAMILY TRADITIONS Kate Baxter-Kauf In the past decade, popular and medical opinions have coa- lesced around the conclusion that breastfeeding an infant for at least the first year of life,2 preferably to the exclusion of infant formula or * Law clerk to Justices Page, Meyer. and Dietzen, Minnesota Supreme Court. J.D., magna cum laude, University of Minnesota Law School, B.A., magna cum laude, Macalester Col- lege. Special thanks to Professor Jill Hasday for her helpful comments on earlier drafts of this article, and to Baxter and Kiernan, without whom this article would not be possible. 1 There appears to be no standardized spelling for the act of breastfeeding, at least in legal opinions. Various court decisions use "breast feeding." "breastfeeding" or "breast-feeding." Additionally, medical experts do not seem to differentiate between the giving of breast milk to an infant via the breast or via pumping expressed milk. This Comment will use the term "breastfeeding," in accordance with the spelling chosen by La Leche League International ("LLLI"), and uses it to refer to both traditional nursing and the feeding of expressed breast milk. See, e.g. LA LECHE LEAGUE INTERNATIONAL, All About La Leche League, http://www.lli.org/ab.html?m=1 (last updated Apr. 26, 2010). This Comment also uses the terms "nursing" and "breastfeeding" largely interchangeably, though "nursing" seems to be more typically used to describe the act of feeding an infant from the breast itself. For a dis- cussion of the potential inappropriateness of using the terms interchangeably in the legal context, see infra note 87 and accompanying text.
    [Show full text]
  • Shared Parenting in the Modern Family from a Feminist View
    36 JIS Journal of Interdisciplinary Sciences Volume 3, Issue 2; 36-54 November, 2019. © The Author(s) ISSN: 2594-3405 Shared Parenting in the Modern Family from a Feminist View Hanna David Tel Aviv University (Emerita), Israel [email protected] Abstract: There is a wide consensus that Shared Parenting after parental separation is beneficial for the children involved. We are to demonstrate that in most cases shared parenting is the preferred solution for women as well. This conclusion relies on the assumption that the best interest of the child is the best interest of the mother too. For mothers, the main advantage of shared parenting is that it helps preventing burnout and allows women more free time for themselves; shared parenting also improves father-child relationship, which is a feminist goal as well. From a financial point of view, shared parenting increases employment prospects, and improves work conditions for both mothers and children. Consequently, it contributes to the physical and mental well-being of children. Shared parenting rules out the guilt versus innocence concept in custody debates, which might be poisonous for children. It also rules out women’s sexual behavior or appearance and discussions about their morality. It also enables mothers to establish new relationships in general and new intimate ones in particular. Shared parenting has a potential to help minority women, including women of color, women belonging to various religions, and women from traditional backgrounds; it has a potential to decrease women’s abuse and divorce-related conflicts. Keywords: Shared parenting; Shared custody; Mothers’ advantages; feminist issue Introduction Shared parenting, or joint physical custody, shared care, shared custody, etc.
    [Show full text]
  • Custody - to Which Parent? Ralph J
    Marquette Law Review Volume 56 Article 4 Issue 1 Fall 1972 Custody - To Which Parent? Ralph J. Podell Harry F. Peck Curry First Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Ralph J. Podell, Harry F. Peck, and Curry First, Custody - To Which Parent?, 56 Marq. L. Rev. 51 (1972). Available at: http://scholarship.law.marquette.edu/mulr/vol56/iss1/4 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. CUSTODY-TO WHICH PARENT? RALPH J. PODELL* HARRY F. PECK** AND CURRY FIRST*** INTRODUCTION Child custody cases are widely acknowledged by judges as among the most painful and difficult tasks they face demanding cognizance that the generalizations and absolutes of the past have often led to a result contrary to the child's best interest. A judge agonizes more about reaching the right result in a con- tested custody issue than about any other type of decision he renders.' This (custody) law bears the stamp of many conflicting values from the past, randomly and often illogically mixed with newer views about the rights of children.2 Historically, custody awards have been dictated or controlled by amorphous platitudes or generalizations on one hand and by 3 rigid absolutes on the other. At common law the father was generally entitled as a matter of right to custody of his minor children,4 but later the law gener- ally gave the mother preference.
    [Show full text]
  • Joint Custody in Louisiana Lois E
    Louisiana Law Review Volume 43 | Number 1 September 1982 Joint Custody in Louisiana Lois E. Hawkins Repository Citation Lois E. Hawkins, Joint Custody in Louisiana, 43 La. L. Rev. (1982) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol43/iss1/9 This Comment is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. COMMENTS JOINT CUSTODY IN LOUISIANA With the 1981 adoption of an act authorizing joint custody of children after separation or divorce, the Louisiana legislature has created myriad complex problems which will challenge Louisiana lawyers and judges.' This comment will examine the historical develop- ment of child custody in Louisiana and other states, discuss the ad- vantages and disadvantages of joint custody, review the statutory and jurisprudential enactment of joint custody in other states, analyze the Louisiana statute, and suggest some possible applications for the Loui- siana attorney whose client may be a candidate for a joint custody arrangement. Historical Development The problem which has perplexed lawmakers and courts at least since the reign of King Solomon' is how to settle a dispute between two persons, both of whom seek custody of a child. More particularly, the current issue is which of two parents is entitled to custody of a child or children of the marriage when that marriage has terminated by separation or divorce. Although the question has remained the same, the answer has undergone several distinct evolutions, each of which has reflected shifts in social and economic patterns.
    [Show full text]
  • Essays on Child Custody Laws, Divorce, and Child Outcomes
    Essays on Child Custody Laws, Divorce, and Child Outcomes DISSERTATION Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University By Yang Chen, B.A., B.S., M.A. Graduate Program in Economics The Ohio State University 2014 Dissertation Committee: Trevon D. Logan, Advisor Lucia Dunn Bruce A. Weinberg Copyrighted by Yang Chen 2014 Abstract Economists have long been interested in the effect of family law on marriage, divorce and child outcomes. The existing literature has focused on the adoption of unilateral divorce laws. However, researchers have overlooked another important legal reform related to divorce: changes in child custody laws. Between the 1970s and 1990s, state custody laws moved from maternal preference, also known as the tender years doctrine, to the best interests of the child doctrine, giving fathers and mothers equal treatment in child custody cases. This dissertation studies the effect of changes in child custody laws on divorce and child outcomes. In the first chapter, I create the first comprehensive coding of child custody law changes in the United States. My legal coding systematically records each individual state's year of transition to gender-neutral custody laws. I use an innovative methodology that takes into account both custody statutes and case law. This coding makes the empirical analysis of the custody law reform possible. Furthermore, the legal coding establishes that states' movement to gender-neutral custody laws is independent of the adoption of unilateral divorce laws in time. I can therefore disentangle the effects of both legal reforms in my empirical analysis.
    [Show full text]
  • Minors and Digital Asset Succession
    A2_BANTA (DO NOT DELETE) 5/10/2019 2:35 PM Minors and Digital Asset Succession Natalie M. Banta* ABSTRACT: Minors who die in the United States hold a property interest in an asset that did not exist when the law established 18 as the age of legal capacity to devise. These assets are digital assets: email, social networking, documents, photos, text messages, and other forms of digital media. Minors use these assets with a fluidity and ease unrivaled by older generations. Under the current law, minors have no right to decide what happens to their digital property at death. Despite the fact that minors have the capacity to contract with online businesses, make health care decisions, marry, have sex, and seek employment, minors are denied one of the most basic rights of property ownership—the right to devise. This Article is the first to explore how minor capacity law should change to accommodate the changing nature of property and grant minors the right to devise their digital assets. It explores historical capacity standards imposed upon minors in order to own and use property and argues that these standards are no longer adequate to regulate digital assets. It demonstrates how applying succession law instead of an arbitrary age requirement safeguards minors’ interests, protects property and privacy rights, and promotes the freedom of succession. This Article argues that granting minors the ability to devise digital assets is a logical evolution of minor capacity standards seen in other areas of the law. Granting minors capacity to devise their digital assets promotes minors’ autonomy and their dignitary interests in their expressions of identity on social media.
    [Show full text]
  • Case Law Listings
    LIST OF CASE LAW Arnal v. Arnal, 609 S.E.2d 821 (2005) Court of Appeals of South Carolina. Laura Lawton ARNAL, Respondent/Appellant, v. David Emil ARNAL, Appellant/Respondent. No. 3943. Heard Sept. 16, 2004. Decided Feb. 7, 2005. Rehearing Denied March 17, 2005. Certiorari Granted March 23, 2006. Background: Former husband appealed final order of the Family Court, Beaufort County, Robert S. Armstrong, J., granting parties a divorce, dividing marital property, imputing income to him, establishing child support and visitation, and requiring him to pay attorney and guardian ad litem fees. Former wife appealed equitable distribution and determination of marital property. Holdings: The Court of Appeals, Hearn, C.J., held that: (1) imputing income to husband of over $9,000 per month, for calculation of child support, was error; (2) child support guidelines excluded in-kind income to wife in form of below fair market value rent; (3) failure to ascertain whether child's uncovered medical expenditures would have been covered by Medicaid if wife had continued to live in South Carolina was error; (4) evidence regarding corpuses of two trusts of which wife was a beneficiary was relevant to attorney fees and travel reimbursement issues; (5) dividing the pre-trial guardian ad litem fees equally between the parties was not an abuse of discretion; (6) imposing upon husband the entire cost of guardian's fees incurred during trial was error; (7) awarding $65,000 in attorney fees to wife was error; (8) husband should have been awarded Easter and summer visitation with child; (9) husband failed to prove he was entitled to special equity interest in non-marital cemetery property; (10) husband should not have been required to reimburse wife's attorneys for their fees from second contempt hearing; and (11) requiring husband to pay wife his portion of child's uncovered medical expenses within 14 days of receiving an itemization was unreasonable.
    [Show full text]
  • The Tender Years Doctrine: a Defense, 70 Cal
    California Law Review Volume 70 | Issue 2 Article 2 March 1982 The eT nder Years Doctrine: A Defense Ramsay Laing Klaff Follow this and additional works at: http://scholarship.law.berkeley.edu/californialawreview Recommended Citation Ramsay Laing Klaff, The Tender Years Doctrine: A Defense, 70 Cal. L. Rev. 335 (1982). Available at: http://scholarship.law.berkeley.edu/californialawreview/vol70/iss2/2 This Article is brought to you for free and open access by the California Law Review at Berkeley Law Scholarship Repository. It has been accepted for inclusion in California Law Review by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact [email protected]. The Tender Years Doctrine: A Defense Ramsay Laing Klafft All states recognize the welfare or "best interests" of the child as the sole or paramount concern in the resolution of custody disputes between parents following divorce or separation.' The tender years doctrine-under which the mother is the preferred custodian for young children-embodies a presumption that a mother's care is ordinarily in the best interests of a young child.2 For more than a century, the doc- trine has been the primary determinative factor in the resolution of in- terparental custody disputes.' In some states, the tender years doctrine t B.A. 1977, De Paul University; J.D. 1980, University of Chicago Law School. Currently in private practice in Chicago, Illinois. The author is grateful to Professor Franklin Zimring of the University of Chicago Law School for his guidance and support through earlier drafts of the Article. 1.
    [Show full text]
  • Goal of Child Custody: Reflections on the Apparent Erosion of the Tender Years Presumption and the Emergence of the Primary Caretaker Presumptions
    Journal of Contemporary Health Law & Policy (1985-2015) Volume 8 Issue 1 Article 11 1992 "That They May Thrive" Goal of Child Custody: Reflections on the Apparent Erosion of the Tender Years Presumption and the Emergence of the Primary Caretaker Presumptions Sanford N. Katz Follow this and additional works at: https://scholarship.law.edu/jchlp Recommended Citation Sanford N. Katz, "That They May Thrive" Goal of Child Custody: Reflections on the Apparent Erosion of the Tender Years Presumption and the Emergence of the Primary Caretaker Presumptions, 8 J. Contemp. Health L. & Pol'y 123 (1992). Available at: https://scholarship.law.edu/jchlp/vol8/iss1/11 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Journal of Contemporary Health Law & Policy (1985-2015) by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. ""THAT THEY MAY THRIVE" GOAL OF CHILD CUSTODY: REFLECTIONS ON THE APPARENT EROSION OF THE TENDER YEARS PRESUMPTION AND THE EMERGENCE OF THE PRIMARY CARETAKER PRESUMPTION* Sanford N. Katz** And you who have heard the story of the chalk circle Bear in mind the wisdom of our fathers: Things should belong to those who do well by them Children to motherly women that they may thrive Wagons to good drivers that they may be well driven And the valley to those who water it, that it may bear fruit.' In the climax to Bertolt Brecht's play, The Caucasian Chalk Circle, the judge listens to the arguments of two women who each want custody of the same child.
    [Show full text]