## Facts

- Christopher P. Devine (father) and Alice Beth Clark Devine (mother) married in 1966, separated in 1979, and had two sons born in 1972 and 1975.
- In the divorce proceeding, both parents sought custody, and the parties stipulated the children were of “tender years.”
- The trial court found both parents fit to have custody.
- Applying Alabama’s “tender years presumption,” which preferred the mother as custodian of young children when both parents are fit, the trial court awarded custody to the mother and granted the father liberal visitation.
- The Alabama Court of Civil Appeals affirmed, approving the use of the tender-years presumption.
- The Alabama Supreme Court granted certiorari to decide whether the tender-years presumption, as applied, violated the Fourteenth Amendment.

## Issues

1. Whether Alabama’s tender-years presumption, which gives a sex-based preference to the mother in custody disputes involving very young children when both parents are fit, violates the Equal Protection Clause of the Fourteenth Amendment.
2. If unconstitutional, what standard must govern custody determinations in cases involving young children.

## Decision

- The Alabama Supreme Court held the tender-years presumption unconstitutional under the Equal Protection Clause.
- The Court reversed the Court of Civil Appeals and remanded for further proceedings.
- The Court required custody to be determined under a sex-neutral “best interests of the child” standard rather than a maternal preference.

## Legal Principles

- A custody rule that prefers the mother over the father solely because of sex is a sex-based classification subject to heightened equal protection review.
- Even when the state’s objective is child welfare, it may not pursue that objective through a conclusive or automatic presumption grounded in sex-based generalizations.
- Custody determinations must be individualized and case-specific, evaluating parental suitability without assigning dispositive weight to gender.
- A court may consider relevant best-interests factors (including the child’s needs and each parent’s capacity, stability, home environment, and parent-child relationship), but none may be applied through a gender-based presumption.

## Conclusion

The Alabama Supreme Court invalidated the tender-years presumption as unconstitutional sex discrimination and directed that custody disputes, including those involving very young children, be decided through a gender-neutral best-interests analysis based on the facts of each case.


Ex parte Devine, 398 So. 2d 686 (Ala. 1981)