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Devine v. Devine

Citation. Devine v. Devine, 20 N.J. Super. 522, 90 A.2d 126
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Brief Fact Summary.

Appellee was given custody of her two children during a custody hearing based solely on the Alabama tender years presumption.

Synopsis of Rule of Law.

The tender years presumption fails scrutiny under the Fourteenth Amendment by placing an evidentiary burden on fathers that is not placed on mothers.


Appellant Christopher Devine and appellee Alice Beth Clark Devine were married in 1966 and separated in Alabama in 1979. They had two sons, Mathew and Timothy. Mrs. Devine taught high school until 1975, when she commenced employment with the U.S. army as an Education Specialist. Appellant was a member of the faculty and head of the Guidance Counseling Department at Jacksonville State University. At the time of the custody hearing the older son had just completed the first grade at the University and the younger son was enrolled at the University’s Nursery Laboratory School. The trial court awarded custody of both boys to the mother based on the tender years presumption.


Did the trial court’s reliance on the tender years presumption deprive the father of his constitutional entitlement to the equal protection of the law?


The tender years presumption represents an unconstitutional gender-based classification which discriminates between fathers and mothers in child custody proceedings solely on the basis of sex.
At the conclusion of the case, there did not exist a clear preponderance of the evidence for either party regarding child custody. However, the court based its decision on the Alabama presumption that when dealing with children of tender years, the natural mother is presumed, in absence of evidence to the contrary, to be the proper person to be vested with custody of such children.

At common law, the father had a virtual absolute right to the custody of the minor children. This right was dependent on the recognized laws of nature and in accordance with the presumption that the father could best provide for the necessities of his children. The wife was without any rights to the care and custody of her minor children. In the 19th century, the court’s of England began to qualify the paternal preference rule by conditioning a father’s absolute custodial rights upon his fitness as a parent.

In the United States the origin of the tender years presumption occurred in 1830, in the belief that it would violate the laws of nature to snatch an infant from the care of its mother. At the present time the tender years presumption is a rebuttable factual presumption based upon the inherent suitability of the mother to care for and nurture young children. To rebut the presumption the father must present clear and convincing evidence of the mother’s positive unfitness. It substantively requires courts to award custody of young children to the mother when the parents are equally fit, and procedurally imposes an evidentiary burden on the father to prove the positive unfitness of the mother.

The United States Supreme Court has held that any statutory scheme imposing obligations on husbands but not on wives establishes a classification based upon sex subject to scrutiny under the Fourteenth Amendment. The same must be true for imposition of evidentiary burdens on fathers, but not on mothers.


The case presents a summary of the former paternal preferences in custody decisions, which helps in the explanation of why a maternal preference must be scrutinized under the Fourteenth Amendment.

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