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15 J. Fam. L. 423 (1976-1977)
The Tender Years Presumption in Child Custody Disputes

handle is hein.journals/branlaj15 and id is 435 raw text is: THE TENDER YEARS PRESUMPTION IN CHILD CUSTODY DISPUTES Allan Roth* I. INTRODUCTION The increase in divorce and the search for new notions of sex role, such as the Women's Liberation Movement, have brought with them increasing criticism of the courts' handling of custody of minor children of the marriage.) The criticism is directed at both the results - it is estimated that 90% of the awards of custody are to the mother2 - and the means by which the results are reached. * Professor of Law and International Business, Rutgers - The State Univer- sity of New Jersey; B.A., 1953, Rutgers; LL.B., 1956, Harvard University. ' Podell, Child Custody - To Which Parent? 56 MARQ. L. REv. 51 (1972); Oster, Custody Proceedings: A Study of Vague and Indefinite Standards, 5 J. F.M. L. 21 (1965); Watson, The Children of Armageddon: The Problems of Custody Following Divorce, 21 SYRACUSE L. REV. 55 (1969); Foster and Freed, Child Custody, 39 N.Y.U. L. REV. 423, 615 (1964); Comment, Measuring the Child's Best Interest -A Study of Incomplete Considerations, 44 DEN. L. J. 132 (1967); Behles, Equal Rights in Divorce and Separation, 3 N.M. L. REv. 118, 132 (1973); SYMPOSIUM ON CHILD CUSTODY AFTER DIVORCE, 10 LAW & CONTEMP. PROB. 696 (1944); Shepherd, Solomon's Sword: Adjudication of Child Custody Questions, 8 U. RICH. L. REv. 151 (1974); Warren, Father Takes Custody of Children - and Mother Thinks it Best, N.Y. Times, Feb. 22, 1974, at 28, col. 1; Dullea, Who Gets Custody of Children? Fathers Are Now Being Heeded, N.Y. Times, Oct. 14, 1975, at 44, col. 1; Molinoff, Father Knows Best, N.Y. Times, June 24, 1975, at 33, col. 1; Broyard, Dad, the Endangered Species (book review of GREEN, FATHERING (1976)), N.Y. Times, Apr. 2, 1976, at 29, col. 4; Van Gelder, New Custody Customs: In the Best Interests of the Child, N.Y. Times, Oct. 30, 1976, at 13, col. 1; Winter, Dad's Role Deemed Crucial in Rearing Children, The Sunday Star Ledger (N.J.), Nov. 18, 1973, § 1, at 70, col. 5; The Parent Gap, NEWSWEEK, Sept. 22, 1975, at 54; Baum, The Best of Both Parents, N.Y. Times, Oct. 31, 1976 (Magazine) at 44; transcript of TV program entitled Child Custody, in the series Woman, Program #308, WNED, Buffalo, N.Y. A spokeswoman for the National Organization for Women (NOW) was quoted as saying that NOW believes that fathers are 'entitled to equal right of custody.' 119741 FAM. L. REP. (BNA) 2056. 2 Drinan, The Rights of Children in Modern American Family Law, 2 J. FAM. L. 101, 102 (1962), cited in Watts v. Watts, 77 Misc. 2d 178, 350 N.Y.S.2d 285, 286 (Fain. Ct. 1973) and 2 H. FOSTER & D. FREED, LAW AND THE FAMILY, § 29:5 at 507 n. 9, W. GOODE, WOMEN IN DIVORCE AND SEPARATION (1965); see also Behles, Equal

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