For Whom the Za Tolls: N.J. Turnpike Authority vs. Jersey Boardwalk Pizza

pizza_vs_parkway

You’re driving over the ocean in the Florida Keys when suddenly you get a hankering for a slice of pizza. Unfortunately, there’s not a toll booth in sight. Suddenly, off in the distance you spot what you think is a sign for a New Jersey turnpike toll both. “Yes!” you exclaim, “Now I can finally get me some of that deep dish goodness.” Little do you know that the signpost up ahead isn’t really for a New Jersey turnpike. No, it’s for a Jersey Boardwalk pizzeria. Halfway through your lunch, it suddenly occurs to you that what you are eating is a medium deep dish sausage and pepperoni pizza, not a toll booth. Too late, you realize that the signpost you’d seen while you were driving the Oversea Highway in the Florida Keys was not directing you to a New Jersey turnpike toll booth at all. It was directing you to … The Trademark Zone.

It’s true: The New Jersey Turnpike Authority really has filed a federal lawsuit against a Florida pizzeria for trademark infringement. It claims the pizzeria’s mark is so similar to the turnpike authority’s mark that people will mistakenly assume the pizza is connected in some way with the New Jersey turnpike authority. It accuses the pizzeria of trading on the good will of the New Jersey turnpike authority. Accordingly, the agency is suing the pizzeria of infringement and unfair competition under Section 43(a) of the Lanham Act, service mark dilution, common law trademark infringement, and unfair competition under N.J. Stat. Ann. 56:4-1. It is seeking an injunction, compensatory damages, and treble damages.

The pizza company brazenly contends that no one in his right mind would confuse a pizzeria with a government agency responsible for collecting highway tolls.

Who will win? Taxpayers, of course, will lose, but it’s still too early to tell whether the pizza company will, too. When it comes to courts these days, anything can happen. Reality is increasingly becoming confusingly similar to fantasy/horror.

But really: trading on the “good will” of the New Jersey turnpike authority? Come on.

The future of custody law, Part I

(Photo: "2001: A space odyssey" movie still)

(Photo: “2001: A space odyssey” movie still)

“The best interest of the child” is now the universally accepted standard for deciding the custody of children in the United States. It is also extremely vague. Some states have tried to give it more specific content by enumerating factors for courts to consider. Unfortunately, legislators typically have given courts very little guidance about how to apply these factors. Appellate courts typically give lower court judges wide discretion to interpret and apply them, including determining how much weight to give to each factor relative to the others in particular cases. This leaves considerable room for sex-based prejudices and stereotypes to operate. It is possible, and indeed very likely, that the “best interest of the child” standard has not so much removed sex discrimination from custody proceedings as driven it underground.1

Meanwhile, there has been a sea change in sex roles in the United States. The majority of workplace positions are now occupied by women, not men; and more men than women are unemployed. Fathers are performing a greater share of child-care than before, and mothers are devoting a greater proportion of their time to work and career development than the stay-at-home mother that was the paradigm when courts developed and applied a maternal preference standard for the determination of child custody.  That paradigm no longer matches reality.

The next few blog posts will examine alternatives to the traditional approach to custody law. Some will be suggestions that others have put forward; others will be my own ideas. It should be noted that discussing a proposal does not mean that I endorse  it. To the contrary, the plan is to subject a variety of proposals – whether I personally like or dislike them —  to critical review. I will begin with the suggestions that some people have made that judges should openly make child custody decisions on the basis of sex.

Sex-based standards

Maternal preference

For many centuries, courts made decisions about child custody on the basis of sex. The tender years doctrine generally required judges to place young children in the mother’s custody. The twentieth century maternal preference doctrine required the placement of all children, even older ones, with the mother unless she was proven to be completely unfit to parent. Although most states have abolished the use of these rules as an explicit basis for deciding the custody of children, many judges, in practice, continue to favor mothers, especially with respect to the custody of young children.2

Perceiving the maternal preference doctrine as being based on the wage-earner-father/stay-at-home-mother paradigm, some judges have declined to apply it when the paradigm does not apply. These judges give no general preference to mothers that are employed full-time outside the home relative to fathers. This has given rise to a  perception that women are being “penalized” with the loss of custody of their children for pursuing full-time careers, on the basis of outmoded beliefs that a woman’s place is in the home.3 Judges, it is said, are able to continue to practice discrimination against women because the “best interest” standard and the factors comprising it are vague and easily manipulated to punish a woman for working outside the home instead of choosing to be a stay-at-home mother. Because of this, the suggestion is sometimes made that a presumption or preference in favor of maternal custody should be made explicit in the law again.

The notion that judges are inclined to “penalize” mothers for working outside the home does not seem to be borne out in the reported cases.4 It is true that some courts have held that the preference for mothers drops out of a case when a mother is employed full-time outside the home.5 The reasoning in these cases, however, is not that a mother is evil and should be punished for choosing to work. It is that the rationale for the maternal preference doctrine disappears when a mother does not perform all or most of the care-giving functions (as the maternal preference doctrine assumes.) The cases reflect a recognition that when both parents work full-time outside the home, a preference for the parent that stays at home to raise children is no longer available; instead, the two parents stand on an equal footing. Application of a maternal preference under these circumstances would not be reasonably related to the achievement of an important, non-discriminatory purpose. It would discriminate against fathers.

For more than a century before the gender-neutralization of custody laws in the late-twentieth century, fathers had been “penalized” with the loss of custody of their children because they were employed outside of the home. The Massachusetts Supreme Judicial Court, in its report on gender bias in the courts, did not find anything discriminatory about that. To the contrary, the court said that it only makes sense for mothers to be awarded custody most of the time because in most cases the father works outside the home and would have to utilize day-care services if he were awarded custody of their children.6 It is not clear why the application of a preference for in-home care by a parent over institutional child-care is considered discriminatory if it is applied against a working mother, but it is not considered discriminatory when it is applied against a working father.7

Of course, returning to the presumption that children should be placed in the custody of their mothers would have the advantage of restoring some certainty to custody law. This, however, simply replaces one form of discrimination with another. In view of the United States Supreme Court’s decision in Stanley v. Illinois that the rights of fathers, like those of mothers, are protected by the Equal Protection clause, legislation mandating a return to an explicit preference for mothers would be of very dubious constitutional validity

Even if it were possible to draft maternal preference legislation in a way that could insulate it from constitutional challenge, it may be questioned whether this approach reflects sound public policy. Whether it happens very often or not, there are cases in which a young child has formed a primary attachment to the father instead of the mother, even though the mother is not demonstrably unfit. Tearing a young child away from his or her primary attachment figure may cause the child significant psychological damage and emotional harm. Policy makers considering a return to an explicit maternal preference will need to ask whether inflicting that kind of damage on children is a price they are willing to pay for whatever benefit may be thought to be gained by rigid adherence to sex-based stereotypes.8

Paternal preference

Unlike mothers’ rights advocates, nearly all fathers’ rights advocates argue for equal parental rights and/or joint custody, not for preferential treatment. Daniel Amneus, by contrast, has argued that courts should apply a preference for fathers.

One of Amneus’ principal arguments is that uniting the right to custody with the obligation of support (he assumes child support is exclusively or primarily a male obligation) would provide intelligent men with a stronger motivation to become fathers (the idea being that undertaking an obligation without an associated right is not intelligent.) Further, he argues, family stability would be enhanced because women would not be as likely to divorce their husbands, or to be sexually irresponsible, if they knew they would not get custody of their children. He points to evidence that children with fathers in their homes have fewer emotional, psychological and adjustment problems, are less likely to engage in antisocial or criminal behavior, and tend to do better academically.9

As with the maternal preference, it may be questioned whether the establishment of a paternal preference is sound public policy. In cases where a child has formed a strong primary attachment to the mother, a paternal preference would not appear to be in the child’s best interests.

Moreover, the same consequences that Amneus regards as following from the maternal preference would also seem to follow from a paternal preference. Amneus argues that mothers are sexually irresponsible, engage in adultery and freely divorce their husbands because they know the maternal preference assures them of keeping their children. If so, then it would seem that a similar argument could be made that fathers may be just as likely to be sexually irresponsible, engage in adultery and freely divorce their wives if they knew that a paternal preference assured them of keeping their children.

Like the maternal preference proposal, Amneus’s proposal has the advantage of restoring some certainty to custody law, but it would almost certainly be held to violate the Equal Protection clause.

The next blog post will look at proposals to establish (or, in some states, re-establish) a gender-neutral preference or presumption in favor of a child’s primary caretaker.

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The complete History of Custody Law is now available in paperback and as a Kindle e-book:

Purchase at Amazon.com

 

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  1. cf.  Lenore J. Weitzman, The Divorce Revolution: The unexpected social and economic consequences for women and children in America (1985), suggesting that the “best interests” standard is itself an expression of the maternal preference.
  2. See, e.g., Greer v. Greer, 624 S.E. 2d 423 (N.C. App. 2006); J.E. Artis, “Judging the Best Interests of the Child: Judges’ Accounts of the Tender Years Doctrine,” 38 Law & Soc’y Rev. 769 (2004); see generally Tom James, The History of Custody Law (2014).
  3.  See, e.g., Associated Press, “Day Care Costs Mother Custody of Daughter,” 3, N.Y. Times, July 27, 1994, at A14.
  4. See, e.g., McDaniel v. McDaniel, 273 S.W. 2d 406 (Ark. 1954) (applying the “tender years” doctrine as basis for awarding custody to the mother notwithstanding her full-time employment outside the home); Burchard v. Garay, 724 P.2d 486 (Cal. Ct. App. 1986) (holding that the fact that a mother works does not give rise to an inference that she is a less satisfactory parent than a stay-at-home parent is); Schexnayder v. Schexnayder, 343 So. 2d 393 (La. Ct. App. 1977) (affording working mother the benefit of the maternal preference doctrine); Wellman v. Dutch, 604 N.Y.S.2d 381, 383 (App. Div. 1993) (reversing award of custody to father than had been made on the basis that the mother had the children in day-care up to 13 hours each day, holding that awarding custody to the father would have “the impermissible effect of depriving … an unmarried working mother … of … custody”); Fitzpatrick v. Fitzpatrick, 207 N.E.2d 794 (Ohio Ct. App. 1965); Witmayer v. Witmayer, 467 A.2d 371 (Pa. Super. 1983) (holding that it is improper to prefer a stay-at-home father to a full-time working mother, where the mother is able to arrange paid child-care while she is working); see also American Bar Association, Guide to Marriage, Divorce, and Families 175 (2006) (“a review of appellate court cases does not disclose widespread prejudice against working mothers…. If anything, most judges seem to admire a mother … who can simultaneously manage work and raising children.”)
  5. See, e.g., Jines v. Jines, 380 N.E.2d 440 (Ill. App. Ct. 1978); In re Lovejoy, 404 N.E.2d 1092 (Ill. App. Ct. 1980); Forsyth v. Forsyth, 172 N.W.2d 111 (Iowa 1969); In re Estelle, 592 S.W.2d 277 (Mo. Ct. App. 1979); Ferguson v. Ferguson, 202 N.W.2d 760 (N.D. 1972): McCreery v. McCreery, 237 S.E.2d 167 (Va. 1977).
  6. Ruth I. Abrams & John M. Greaney, Massachusetts Supreme Judicial Court, Gender Bias Study of the Court System in Massachusetts (1989), reprinted in 24 New Eng. L. Rev. 745, 830 (1990).
  7. Compare Morrison v. Morrison, 395 So. 2d 909 (La. Ct. App. 1981) (awarding custody to mother with history of sever mental illness because father worked full-time and would need to use paid child-care if he were awarded custody) and Ritter v. Ritter,450 N.W.2d 204, 213 (Neb. 1990) (holding that father’s employment outside the home justified award of custody to mother) with Fitzsimmons v. Fitzsimmons 722 P.2d 671 (N..M.. Ct. App. 1986) (holding that a court may not use the fact that a working mother needs to place the child in full-time care against her in a custody contest with a fit stay-at-home father); cf. In re Estelle, 592 S.W.2d 277 (Mo. Ct. App. 1979) (holding that a court’s refusal to apply the maternal preference to a working mother does not deny Equal Protection to women; rather, it puts mothers and fathers on an equal footing); McCreery v. McCreery, 237 S.E.2d 167 (Va. 1977) (holding that consideration of the effect of a mother’s employment on the amount of time she is able to spend with the children does not violate the Equal Protection clause); James G. Dwyer, “Parents’ Self-Determination and Children’s Custody: A New Analytical Framework for State Structuring of Children’s Family Life,” 54 Ariz. L. Rev. 79, 102 (2012) (“What many courts and scholars have failed to recognize is that the primary caretaker factor .. ‘penalizes’ primary breadwinners (typically fathers) for having devoted time to employment….”)
  8. It is also possible that such legislation might ultimately work to the disadvantage of women. To avoid separating a child from a father in situations where the father is the primary parent to whom the child has most closely bonded, judges might be disposed to interpret “unfitness” very broadly, much like the concept of paternal unfitness was interpreted broadly to enable judges to award children to their mothers in the eighteenth and nineteenth centuries. Precedents set in such cases could end up setting the bar for maternal fitness very high, perhaps even coming full circle to the conclusion that a mother who devotes so much time to her career that her child’s primary attachment is to her father is “unfit.”
  9. Daniel Amneus, The Case for Father Custody (1999)

“For Their Own Good”: the failed Indian boarding school program, and what we can learn from it

Chiricahua_Apaches-Carlisle- 1887

The nearly universal standard in child custody cases today is “the best interests of the child.” In the United States, citizens have entrusted their government, acting through its judiciary, administrative agency personnel, and other appointees, with the power and authority to decide what is in their children’s best interests. While it may be difficult to conceive of a better alternative, it is also important to understand that unregulated governmental discretionary power can have disastrous consequences. When governments make decisions about what is in children’s best interests, they do not always get it right. The American Indian boarding school program upon which the United States government embarked in the nineteenth century is a good example of that.

Federal assimilation policy

Federal policy with respect to the regulation of tribes has alternated between attempts to assimilate Native Americans into non-Native populations, on one hand, and efforts to preserve tribal self-determination, on the other.1 The focus in the nineteenth century was on assimilation. A key component of the nineteenth century federal policy of assimilation was to abolish the tribal system of communal ownership of land. The Dawes Act attempted to do this by dividing reservations into parcels of land and then allotting individual parcels of land to individual Indians and their families. In addition, some of the reservation land was allotted to non-Natives, the plan being for these non-Natives to “civilize” the Natives by teaching them modern farming methods and such. The leading proponent of allotment was Senator Henry L. Dawes, after whom the General Allotment Act of 1887 was named. 2

Unfortunately, federal “assimilation” policy in the late nineteenth century went far beyond eliminating communal land ownership and teaching Native Americans modern farming methods. Federal lawmakers also removed children from the custody of their parents and placed them in government-run boarding schools.

Throughout the late nineteenth century, federal policymakers viewed Native American children as the solution to “the Indian problem” because they were more malleable/teachable than adult Natives were. It was believed that if Native children could be reached early enough, then it would be possible to prevent their development into uncivilized “savages” like their parents. To ensure the success of the program, children were not permitted to speak in their native tongues, to practice their native religions or spiritual beliefs, or even to look like Native Americans. As the 1886 Commissioner of Indian Affairs explained:

|T|he adult savage is not susceptible to the influence of civilization, and we must therefore turn to his children, that they might be taught how to abandon the pathway of barbarism and walk with a sure step along the pleasant highway of Christian civilization…. They must be withdrawn, in their tender years, entirely from the camp and taught to eat, to sleep, to dress, to play, to work and to think after the manner of the white man.3

The success of this program is debatable.

The children were usually kept at boarding school for eight years during which time they were not permitted to see their parents, relatives or friends. Anything Indian — dress, language, religious practices, even outlook on life … was uncompromisingly prohibited. Ostensibly educated, articulate in the English language, wearing store-bought clothes and with their hair cut short and their emotionalism toned down the boarding school graduates were sent out either to make their way in a white world that did not want them or to return to a reservation to which they were now foreign.4

Policy shift

Federal policy began to shift toward preservation of Native American customs, traditions, and self-determination in the 1930’s with the Indian Reorganization Act, and then again in 1978 with the Indian Child Welfare Act. By 1971, less than 18% of school-aged Native children were being removed from their homes and placed in federal boarding schools.5 Today, the custody of Native American children is governed by a complex system of state, federal and tribal jurisdictional, procedural and substantive laws. Courts are no longer permitted to indulge an assumption that removal of children from the custody of their Native American parents is in their best interest.

Laws still on the books

Federal laws authorizing the forcible placement of American Indian children in boarding schools have not been repealed. 25 U.S.C. § 273 (1879), directing the U.S. Army to enforce the placement of Indian children in federally designated boarding schools, is still on the books.

25 U.S.C. § 302 (1906) is another example. This law still authorizes the Commissioner of Indian Affairs to designate and regulate “Indian reform schools,” and it provides for the forcible placement of Indian children in them. At least one of its provisions – that “the consent of parents, guardians, or next of kin shall not be required to place Indian youth in said school” – is probably unconstitutional, in light of subsequent Supreme Court cases holding that parents have a Due Process right to direct their children’s education.

The continued existence of these laws is a good demonstration of the principle that power, once ceded, is rarely ceded back. Governments, and the people who run them, like power. It stands to reason, therefore, that they generally will not voluntarily impose limitations on themselves.

Conclusion

The federal assimilation policy that resulted in the forcible removal of Native children from their parents, and their placement in what were basically government-run re-education camps, was an application of the “best interests of the child” standard. Federal lawmakers believed that separating children from their families so they could be trained to be more like the dominant race was “for their own good.” As such, the experience should serve as an eternal warning that ceding unbridled discretion to the government to determine what kind of custodial arrangement is in children’s best interests is never a good idea. Objective standards limiting and guiding the discretion to determine what is in children’s best interests are needed. And when formulating standards about what is best for children, the first question that should be asked is whether routinely limiting children’s time with, and respect for, a parent on the basis that the government or one of its agents has decided the other parent is “better,” is really for their own good. Surprisingly few policymakers have addressed this question.

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The complete History of Custody Law is now available in paperback and as a Kindle e-book:

Purchase at Amazon.com

 

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  1. F. COHEN, HANDBOOK OF FEDERAL INDIAN LAW, WITH REFERENCE, TABLES, AND INDEX (1971)
  2. While some historians portray Dawes as a humanitarian concerned with the long-term welfare of Native Americans, his writings reflect a somewhat different kind of concern. “It was plain,” he wrote, “that if |a Native American| were left alone, he must of necessity become a tramp and beggar with all the evil passions of a savage, a homeless and lawless poacher upon civilization and a terror to the peaceful citizen” Henry L. Dawes, Have we failed with the Indian, 84 ATLANTIC MONTHLY 280 (1899)
  3. quoted in L. George, The challenge of permanency planning in a multicultural society, 5 J. MULTICULTURAL SOC. WORK 165, 166 (1997)
  4. PETER FARB, MAN’S RISE TO CIVILIZATION AS SHOWN BY THE INDIANS OF NORTH AMERICA 257-59 (1968)
  5. B. J. JONES, THE INDIAN CHILD WELFARE ACT HANDBOOK: A LEGAL GUIDE TO THE CUSTODY AND ADOPTION OF NATIVE AMERICAN CHILDREN (1995)