Ex parte Devine

398 So. 2d 686, 1981 Ala. LEXIS 3392



A state's substantial interest in overseeing the care and custody of minor children is served by the "best interests of the child" rule, and the "tender years presumption" impedes full application of that rule and violates equal protection.


A trial court awarded custody of two children, ages 4 and 7, to the mother on the basis of the "tender years presumption," a rebuttable factual presumption based upon the inherent suitability of the mother to care for and nurture young children. Under the presumption, if all things are equal between parents, the mother is presumed to be best fitted to guide and care for children of tender years. The intermediate appellate court affirmed the trial court's application of the "tender years" presumption in awarding custody of the parties' children to the mother. On appeal to the Supreme Court of Alabama, the father argued that the application of the "tender years presumption" was unconstitutional.



Was the application of the tender years presumption in awarding custody of minor children to a mother unconstitutional?




The Supreme Court of Alabama reversed, finding that the presumption, which required the custody of young children to be awarded to the mother when the parties were equally fit parents, imposed an evidentiary burden on the father to prove the positive unfitness of the mother. The court ruled that any statutory scheme that imposed obligations on husbands, but not on wives, established a classification based upon sex that was subject to scrutiny under the Fourteenth Amendment, and the same was also true for a legal presumption that imposed evidentiary burdens on fathers, but not on mothers. The court found that the state's substantial interest in overseeing the care and custody of infants was served by the "best interests of the child" rule, and that the "tender years presumption" impeded full application of that rule. In remanding, the court directed a consideration of the individual facts relative to both parents to truly derive the children's best interests.

Click here to view the full text case and earn your Daily Research Points.