Devine v. Devine

Supreme Court of Alabama · 1981 · Family Law

398 So. 2d 686 (1981)

Updated August 1, 2026

Family Lawtender years doctrinechild custodyequal protectiontender years presumptiongender classificationbest interests of the childindividualized determination

Facts

The parties were married in 1966 and separated in 1979, and they had two sons born in 1972 and 1975. The parties stipulated that both children were of "tender years" within the meaning of the doctrine. The trial court stated that both the father and mother were fit and proper parents, that neither was shown to be unfit, and that there was no clear preponderance of the evidence for either party on custody. The trial court then awarded custody to the mother based in part on Alabama's tender years presumption and its view that custody with the mother was in the children's best interest.

Issue

Whether the trial court's reliance on the tender years presumption in awarding custody of young children to the mother violated the father's right to equal protection under the Fourteenth Amendment. More specifically, the question was whether the maternal preference embedded in that presumption could constitutionally be used when both parents were fit.

Rule

The tender years presumption is an unconstitutional gender-based classification because it discriminates between fathers and mothers in child custody proceedings solely on the basis of sex. Child custody must instead be decided through an individualized best-interests inquiry that considers the facts of the particular case, including the characteristics and needs of each child and the relative capacities and environments offered by each parent. The sex and age of the children may be important considerations, but they cannot operate as a presumption favoring the mother or impose on the father the burden of proving the mother's unfitness.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a divorce action in Birmingham, Alabama, the judge finds that both Elena Morris and Daniel Morris are fit parents for their four-year-old daughter. The judge states that the evidence is evenly balanced but awards primary custody to Elena because "a child this young belongs with her mother unless the father can show otherwise."

If Daniel challenges the ruling, which is the best analysis?

Explanation. The majority held that the tender years presumption is an unconstitutional gender-based classification. A court may not resolve an evenly balanced custody dispute by presuming the mother is the better custodian because of sex. Instead, the court must decide custody through an individualized best-interests inquiry.