Kramer is more than an attack on the tender years doctrine
and its ideological foundation, the notion of motherhood that arose in the Age of Enlightenment.
Once the tender years doctrine
was abolished, subsequent cases utilized the requirement of "detriment" in determining when a change of custody would be appropriate.
Under this standard, all "children under a certain age will be deemed not to have capacity for contributory negligence."(6) This approach has often been called the tender years doctrine.(7)
The more difficult cases with regard to the tender years doctrine and the Illinois Rule tend to be those cases that deal with older children who are part of the immune class.
However, by the 1980s, custody regulations no longer fit well with people's situations. Seventy-five percent of women with children under 14 now work outside the home and current research of psychology and sociology does not support the tender years doctrine
. In fact, we now have studies that show that such sociological engineering may have been detrimental to the children and society.
Until the 1980s, minor children were usually awarded to mothers under the Tender Years Doctrine
. Unless the father could prove to the court that the mother was "unfit," rarely did fathers leave the courtroom with custody of their children.