Habeas Corpus In Apex Courtan Alternative Path To Obtain Child Custody, Sidestepping The Traditional Custody Petition In District Court

Abstract

It is historically presumed and also often found to be embedded in the legal principles of family laws of many modern-day countries that during a child's "tender" years (generally regarded as the age of four and under), the mother should have custody of the child. The family laws prevalent in India upholds the doctrine no differently and, generally, in any custodial dispute between sparring couples having “tender aged” children, usually the custodianship is awarded to the mother.

However, in recent times, the ‘tender-years’ doctrine has been replaced by ‘best interests of the child’ doctrine in advanced economies such as the USA and European Union as the tender-years doctrine was often not doing the justice in terms of child welfare needs and in USA the tender-years doctrine was found to be violating the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.