Recently Daniel Craig was ridiculed for carrying his weeks-old infant daughter in a papoose tied around his neck.  The negative comments, brought about by British Today star Piers Morgan, included the sentiment that by taking this action, Mr. Craig had been “emasculated.”  Perhaps Mr. Morgan believes the “tender years doctrine” still has a place in today’s society?

Throughout history, woman have had very little legal rights and those that were given to them, were usually derived from their fathers and/or husbands.  In family law proceedings, prior to the nineteenth century, custody of children was largely provided to fathers as they were seen as the “bread winning” parent who would be able to financially provide for the children.

In the 19th century, this thought pattern changed and women began to receive custody of their children through the court system.  The doctrine that made this possible was the “tender years doctrine,” which held the presumption that a young child, under the age of seven, when both parents were viewed as equally fit to care for and raise the child, was always better served in the custody of its mother than its father.  One court during this time reasoned that to “grant custody of a child to a father was ‘to hold nature in contempt, and snatch helpless, puling infancy from the bosom of an affectionate mother, and place it in the course hands of the father.’” (Helms v. Franciscus, 2 Bland Ch. [Md.] 544 [1830]).  By the end of the 20th century, however, this doctrine was abolished, along with the reasoning of the Helms case.  In fact, several state courts have held the doctrine unconstitutional, stating it violates the equal protection clause of the Fourteenth Amendment.  Today, most state legislature has enacted the “best interests of the child” doctrine in its place, which is gender neutral.

In Pennsylvania, the “best interest of the child” standard is determined by a judge reviewing the sixteen factors set forth under 23 Pa.C.S. §5328, which include, but are not limited to:  (1) what parental duties each parent performs for the child/ren; (2) which parent is more likely to maintain a loving, stable, consistent and nurturing relationship with the child/ren; (3) which parent is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child/ren; (3) what is each party’s availability to care for the child/ren or make appropriate child-care arrangements; and (4) which parent is more likely to encourage and permit frequent and continuing contact between the child/ren and the other parent.  None of these factors require a parent to testify to his or her financial estate, nor do they presume a child of a certain age would be better served in the primary custody of its mother.  Instead, it looks for the parent, regardless of gender, who includes the most factors in his/her child raising.

So in today’s society, a man can have both; the right to primary custody of his infant child and the right to carry a license to kill!

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
The photo used for this blog post is a stock image. The person(s) in the photo do not represent a client or clients of Obermayer Rebmann Maxwell & Hippel LLP.


Boyanowski, CCara A. Boyanowski concentrates her practice in the field of domestic law and wills and estates.  As a domestic law practitioner, she represents clients in simple and complex divorce, support, custody, alimony, step-parent adoptions, name change and same-sex divorce and custody matters.  She works out of Obermayer’s Harrisburg, PA office and can be reached at 717-234-5315 or at Cara.Boyanowski@obermayer.com.