Same-sex marriage and divorce needs a larger solution then the state’s rights approach. Texas Governor Rick Perry, a potential presidential candidate, recently discussed his views on New York’s legalization of same-sex marriage. Perry said: “You know what? That’s New York, and that’s their business, and that’s fine with me. Our federal government is engaged with far too many things they shouldn’t be involved with at all." The problem with that view is that once it’s one state’s business, it’s every state’s business.

Historically, marriage has largely been left to the authority of the states. States issue marriage licenses, set the age of consent and prohibit certain family relations from entering into marriages. States also make laws regarding the dissolution of marriages, alimony, child support, property division and custody. But the federal government has its say as well. Congress enacted the Defense of Marriage Act, defining marriage for federal purposes as the union of one man and one woman. More importantly, DOMA specifically relieves states of the obligation to treat a same-sex marriage from another state as a marriage under its own laws. And that’s the trouble.


In today’s mobile society, where families easily move across state boundaries for jobs, family, retirement, and education, the failure of another state to recognize a same-sex marriage leaves families in legal limbo and without access to justice if divorce becomes necessary. A spouse, with no other means of support, may be prevented from seeking alimony. A child may be barred from seeing her non-biological parent, to her great detriment. A couple may be forced to remain legally bound to one another, long after they have separated, because their home state refuses to recognize the marriage and allow access to the family court system.


These situations and the devastating effects it can have on a family, demand remedy. I make the case for justice, setting aside the legal arguments of both sides of the same-sex marriage debate, from equal protection to the 10th amendment to the full faith and credit clause. The federal government must mandate that same-sex families may dissolve their relationships and settle custody disputes wherever they may move in the country. Until the federal government acts, New Hampshire, which requires the person seeking the divorce to have resided in the jurisdiction for one year, must allow same-sex families who have moved from New Hampshire to access the court system to dissolve marriages entered into in New Hampshire.

All too commonly, I have had parents ask me to confirm that a mother has automatic custody of a child when parents separate and that the court will side with the mother in a custody battle. This is a misconception that has persisted far past the abolition of the “tender years doctrine.” With a little historical background it is easy to understand where this notion comes from, because for over a century it was the custom in this country. 

The “tender years” doctrine held that while all other factors remained equal, custody was awarded to the mother. This was largely based on the belief that the mother was "the softest and safest nurse of infancy" and that “to grant custody of a child to a father was to hold nature in contempt, and snatch helpless, puling infancy from the bosom of an affectionate mother, and place it in the coarse hands of the father,” as the Alabama Supreme Court notes in Ex parte Devine, quoting the 1830 case Helms v. Franciscus.   

Needless to say, customs and traditions have changed a bit since 1830. Shifting social mores have cast the tender years doctrine aside in favor of more gender neutral considerations. In the middle of the twentieth century states began repealing the tender years doctrine and since that time the prevailing and well established approach is to take into consideration the overall “best interests of the child.” New Hampshire is no exception; New Hampshire Revised Statutes Annotated 461-A:6 governs the determination of parental rights and responsibilities based on what is in the best interests of each child. RSA 461-A:6. The statute is quite lengthy in setting out factors to be considered by the court, though none of them include gender.

Not only have contemporary notions of gender equality been the basis for removing the antiquated “tender years” doctrine, but so has a better understanding of the rights and freedoms granted to us by our Constitution. Some states have concluded that the tender years doctrine violates the Equal Protection Clause of the state constitution because it discriminates on the basis of sex. Such discrimination would also violate the Fourteenth Amendment to the United States Constitution as well (the federal Equal Protection Clause).

This concept is embodied in the New Hampshire law. RSA 461-A:6, III states that when “determining parental rights and responsibility[ies], the court shall not apply a preference for one parent over the other because of the sex of the child [or] the … parent.” This is an explicit rejection of the tender years doctrine. RSA 461-A:6, III. Therefore, in New Hampshire, there is no presumption that the child will be placed with the mother in a domestic relations proceeding affecting parenting rights and responsibilities. 

Crusco Law Office Law Clerk Dan McLaughlin contributed to this post.