PART I:

INTRODUCTION:

    Beginning in the 1940’s, at a time when the national divorce rate was less than 10%, there was an inherent

understanding that children of broken homes and families needed to be provided for.1 Corresponding with this time in our

period of social and legal history, there was also the prevailing misconception that women had an inherent right to physical

custody of minor children.2  This underlying social concept was likely bolstered and perpetuated by the fact that our

country was reeling on the heels of one of the largest wars in the industrialized age.3 Because the role of women in war

was largely inapplicable preceding World War II, it was historically commonplace for men to leave their children in the care

of their wives and go to war. Even in times of serious economic strife, men would often leave their children and families to

go off seeking work, because women’s roles in society were seen as primarily domestic.4 It was likely these social norms

that aided in the development of what commonly became known in the law as “The Tender Years Doctrine” following the

The Talfourd Act5 of 1839. This doctrine has largely been disbanded in most modern jurisdictions including our State of

North Carolina.6 The basic premise of “The Tender Years Doctrine,” was that a legal presumption existed creating a priority

in favor of a natural mother for physical custody of a minor child of tender years notwithstanding a showing of unfitness,

over the natural father.7 This doctrine was compounded in popularity by the feminist movement of the late 1960’s and

1970’s at a time when sex-fueled and drug addicted youth gave rise to a huge boom in illegitimate births as well 

1 See David Blankenhorn, Fatherless America: Confronting Our Most Urgent Social Problem, 12-19 (1995).

2 See Supra, Note 5.

3 See Supra, Note 1.

4 See Mimi Abramovitz, Regulating the Lives of Women, in Poverty Law: THEORY AND PRACTICE 28, 28-29 (Julie A. Nice & Louise G. Trubek eds., 1994).

5 2 & 3 Vict. Stat., ch. 54 (1839).

6 N.C.G.S. § 50-13.2(a) and Rosero v. Blake, 357 N.C. 193 (2003).

7   Richard A. Warshak, The Custody Revolution: The Father Factor and the Motherhood Mystique, 29 (1992).

as skyrocketing divorce rates.8 Even before this boom in social unraveling, the courts began to swing away from fathers in terms of custody decisions on the heels of the industrial revolution as quoted by the Supreme Court in North Dakota in one 1918 decision that a mother’s love is one of "the most sacred ties of nature” in a custody decision.9

All of these changes came on the backs of a grown social change where women were seeking to become independent both socially and economically. The problem became three-fold however and more women soon discovered that as the pressed their husbands for social and personal autonomy that their marriages failed faster than their social status grew.10 Since the law had for once, begun to change faster than social norms did, women were given priority to custody in a society that refused to give them social and economic equality with men.11 This reality persisted far into the 1970’s and women rapidly found that where they could more easily throw off the shackles of their “male captors” in divorce, they were in effect trading their marriage for almost guaranteed poverty. The State then responded with the “child support system” and the country would never be the same.12