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