A merit-based alternative to sex discrimination
Rather than using a sex-based preference to decide custody, it is sometimes suggested that courts should apply a works-based preference; that is to say, that courts should apply a preference for the parent who has done most of the work of caring for the child.
In the 1980’s, Minnesota and West Virginia courts did just that. These states established a legal presumption that children should be placed in the sole custody of the parent who has been their primary caretaker, which they defined as the one who has assumed the most responsibility for child-care tasks like feeding, clothing, bathing, transporting to school and medical appointments, and the like.
The West Virginia court reasoned that implementing a uniform presumption would provide greater predictability of results and therefore would reduce litigation. In practice, though, the presumption had the opposite effect, resulting in what one commentator described as an “explosion” in litigation. Rather than reducing contested litigation, the rule caused parents to start scrambling to marshal evidence and construct arguments to prove they had done “most of the work,” or that the kind of work they had done was more important than the kind of work the other parent had done.
Another justification that is sometimes offered for the presumption is that it is felt to be fairer to the parent who performed most of the caregiving during a marriage. In Burchard v. Garay, for example, the California Supreme Court said that an award of custody to anyone other than the mother is “particularly unfair when, as here, the mother has in fact been the primary caregiver.” Concurring in the result, Chief Justice Rose Bird suggested that not only should there be a presumption in favor of the primary caretaker, but there should also be a presumption that mothers are always the primary caregivers and fathers are not. “Typically, it is the mother who provides most day-to-day care, whether or not she works outside the home. A presumption which ignores this fact is likely to lead to erroneous and unfair decisions,” she wrote.
It is somewhat disconcerting that even as late as 1986, the top judicial official of the most populous state in the nation was advocating for the perpetuation of sex role stereotypes in the law, at a time when those very stereotypes were handicapping women who were seeking equal opportunities in workplace roles traditionally performed by men. To an individual learned in the law, it should make no sense to say that employers should be entitled to apply a presumption in favor of male applicants when making hiring and promotion decisions with respect to medical, technical, law enforcement, labor-intensive, or other jobs which traditionally have been performed mostly by men rather than women. By the same token, it should make no sense to say that judges should be entitled to apply a presumption in favor of females when making custody decisions simply because custody-related jobs traditionally have been performed mostly by women rather than men – especially when judges themselves, by establishing legal doctrines like the tender years presumption and the maternal preference, were largely responsible for creating and enforcing the practice of rigid sex-role stereotyping in the first place.
Feminist commentators, however, argue that the law should apply sex-based preferences in favor of women. The standard rationalization for allowing “benign” discrimination (sometimes called “affirmative action”) is that doing so is necessary to undo, or balance out, the effects of past discrimination. Since American custody law has always favored women, that argument is of no avail in the family law context. What possible argument could there be for re-establishing a standard that favors women simply because they are women? Well, according to Laura Sack, doing so would “alleviate much of the post-divorce suffering of women.” This, she says, will help promote “gender equality.”
The “equality” she is referencing, of course, is not equality of rights, but equality of economic outcome. The idea is that the economic benefit to a parent of sole custody, in terms of higher child support and so on, should be used to offset perceived differences in the relative class-economic-statuses of men and women.
The principal feminist argument in support of a “primary caretaker” presumption that includes a biased presumption that women are the primary caretakers of children is that women should receive custody because they suffer more financially after a divorce. This argument, though, is a circular one. The principal reason cited for women’s purported greater financial suffering after a divorce is that women more often have custody of the children after a divorce, so their living expenses are greater. This would be an argument for making more awards of custody to fathers, unless it is assumed that only women should be awarded custody of children. Hence the circularity.
Moreover, the notion that women suffer more, economically, after a divorce than men do is dubious, at best. The claim that women suffer financially after a divorce, while men gain financially, was propounded by Lenore J. Weitzman in her 1985 book, The Divorce Revolution: The unexpected social and economic consequences for women and children in America. In support of this claim, she set out a series of statistical “findings” demonstrating what appeared to be extraordinarily severe financial losses suffered by women post-divorce, and nothing but financial gains experienced by men. These have been described as “ranking among the most cited demographic statistics of the 1980s.” The problem is that her statistics were not valid. They were not even consistent with her own information, something which Weitzman herself eventually acknowledged. In reality, it is estimated that men suffer a 10-40% financial loss following a divorce. Unless a man contributed more than 80% of a family’s income before the divorce, he will actually suffer more financially from divorce than his wife will.
Claims that women suffer more financially than men post-divorce even after transfers of income from men to women in the form of child support are accounted for are based on comparisons of gross (pre-tax) income, and do not take other tax consequences into consideration. This is a significant omission because child support is not deductible by the payor, and is received tax-free by the recipient. In addition, custodial parents enjoy several tax-reducing advantages that noncustodial parents do not, i.e., taxation at the lower, head-of-household rate; a presumptive right to claim children as exemptions; child tax credit; child-care expense deduction or credit; and, in some cases, an earned income credit. Moreover, people who make these claims entertain an assumption that a custodial mother pays 100% of the children’s expenses, while the noncustodial parent has absolutely no child-related expenses at all. In other words, they assume either of two things: (1) that noncustodial parents do not need to provide space in their homes for children during visitation; do not purchase food or anything else for the children during visitation; do not share in the cost of health insurance or expenses; and do not have any transportation costs; or (2) that the custodial parent gives money to the noncustodial parent to cover all child-related expenses during visitation. Neither assumption is valid. Most states mandate a contribution by the noncustodial parent to the child’s medical insurance and expenses; and also require the noncustodial parent to contribute to the custodial parent’s child-care expenses. No state requires the custodial parent to provide money to the noncustodial parent to support children during visitation periods. While visitation percentages vary, there is some evidence that most noncustodial parents today typically have children in their care over 24% of the year. The assumption that custodial parents fund the noncustodial parent visitation for 24% of the year has no foundation in reality. The truth is that noncustodial parents incur and pay child-related expenses that are not reimbursed by custodial parents, and these expenditures can be quite substantial. When data is corrected for these errors, and when account is taken of the existence of male custodial parents (rare, but not non-existent), mothers’ post-divorce standard of living not only is not inferior to fathers’, but it is actually higher than fathers’.
Even if it were true that women suffer more economically after a divorce than men do, the claim that giving women the benefit of discriminatory stereotypes “promotes gender equality” requires a definition of equality that is expressed exclusively in terms of equality of economic outcome. It may be questioned why other kinds of equality, i.e., equality of rights and equality under the law, must be sacrificed for the sake of achieving absolute equality of economic outcomes. If, by some happenstance, it became possible to ensure that the average woman had exactly the same level of income as the average man simply by limiting freedom of religion to Protestants and not Catholics, or by prohibiting black people from voting, would we do it? If not, then why should we be willing to sacrifice other fundamental rights, such as the fundamental right of parents to the custody and care of their children, to achieve that outcome?
There are also ethical problems. Should children’s lives and well-being be sacrificed in the interest of achieving gender-class-outcome-equalization goals? Should children be treated as items of property to be distributed among the populace on the basis of adult financial statuses?
Some feminists have argued that courts should always award sole custody to women as “a reward in consideration for the caretaking she has performed.” If this is true, then why shouldn’t male caretakers be rewarded for the same reason?
Does it even make sense to view custody law as a sort of Skinnerian system of rewards and punishments, though? That approach certainly conflicts with the view of custody law as an exercise of the state’s parens patriae authority to protect the best interests of children. Applying the “reward for services rendered” approach would mean routinely awarding custody to parents who, although buying all the groceries and making all the meals for their children, also subject them to repeated beatings.
Finally, all of these arguments are based on sexist generalizations about men and women and their appropriate roles in society. Establishing presumptions on this basis entrenches sex-role stereotyping as a social norm. Unless feminists are prepared to concede that employers may favor male job applicants in traditionally male-dominated fields simply because they are male, they should think twice before advocating for any legal standard on the basis that it produces outcomes that are more favorable to one sex than to the other.
Discriminatory definitions of caregiving
The primary caretaker presumption has been criticized because it leaves a judge with the power to make a finding that the father in a particular case is the primary caretaker, or to award custody to a father on the basis of a finding that the mother is unfit. Of course, no solution short of a return to an explicit maternal preference can avoid that kind of criticism. It seems doubtful, however, that returning to a system in which courts explicitly rule in favor of mothers solely because they are women could, or should, withstand constitutional scrutiny.
Others argue that the problem with the standard is not that it fails to discriminate enough, but that it discriminates too much, albeit in a less overt way than the tender years and maternal preference doctrines did. The crux of this argument is that legislators and judges often define tasks traditionally performed by mothers as “caregiving,” while omitting from the definition those parenting tasks that traditionally are performed by fathers. For this reason, several commentators have observed that it is really little more than the maternal preference in disguise.
There is some merit to this criticism. The genesis of the presumption, after all, was the West Virginia Supreme Court’s concern, expressed in Garska v. McCoy, that it would be “terrifying” to the primary caretaker of a child for a court to take the child away if the primary caretaker in question was a mother. No court has ever expressed a concern, or felt a need, to protect a grown man from becoming “terrified” about being made a mere visitor to his children. To the contrary, courts have been doing that to men for centuries. The purpose of establishing a primary caretaker doctrine was to ensure that mothers would continue to receive sole custody of their children notwithstanding the gender-neutralization of custody law.
That being the case, it would make sense for courts to define caregiving in terms of functions traditionally performed by women, while omitting caretaking functions traditionally performed by men. And that is exactly what they have done. Functions traditionally performed by women – such as cooking; cleaning; driving children to medical appointments; and shopping – typically are included in lists of “caregiving” functions that courts and evaluators use to decide which parent is the primary caregiver. Meanwhile, functions that historically were more often performed by males – taking out garbage; washing dishes; doing household repairs; mowing lawns; earning the money to make shopping for groceries and clothing possible; maintaining and repairing the vehicle that is used to drive children to medical appointments; and developing a child’s intellectual, social and motor skills through physical activities — typically are omitted from the list.
Penalizing working women?
Feminists have criticized the rule, too, though for different reasons. They argue that establishing a preference for stay-at-home mothers penalizes working mothers for pursuing careers rather than staying at home to care for their children. They say that the standard places too much emphasis on the quantity of caregiving (“counting hours”), and not enough on quality. This, it is said, overvalues the performance of caretaking tasks while undervaluing the strength of the bond between a parent and the child.
It is this kind of concern that led the Minnesota legislature to prohibit courts from applying the primary caretaker presumption, not long after having required them to apply it. Largely at the urging of feminists, the legislature concluded that courts should have discretion to choose to favor the primary caretaker for custody in some cases, such as those involving stay-at-home mothers, and to favor other factors in other cases, such as those involving working women.
Unreasonably cementing caregiving patterns
Another criticism of the primary caretaker standard is that it fails to take account of the fact that caregiving patterns can, and should, change as children grow and change. Child development professionals generally agree that it is normal and healthy for a child’s attachments and needs to change over the course of his or her childhood. One parent may have a stronger attachment bond, or a better ability to meet a child’s needs, when the child is younger; but the child may have a stronger attachment or need for the other parent when he is older. Needs and attachments can alternate several times throughout childhood. A custody arrangement for a fourteen-year-old boy that is based on which parent nursed him the most when he was a baby may not necessarily be in his best interests.
Caregiving vs. attachment
Historically, the motivation for establishing a primary caretaker presumption was to ensure that mothers would continue to receive sole custody of children; and this was also the motivation for abolishing it. Despite the inauspicious motives behind them, these conflicting changes in the law brought a larger question into sharper relief: Why should the relative quantity of time a parent spends performing certain specified functions be more important than the kind of attachment, or bond, the child has formed with the parent? Why should the law automatically favor the parent who is cooking dinner while the other parent is teaching the child how to perform a house or car repair, or developing his motor skills and self-esteem through play? Why shouldn’t the law favor the parent to whom the child turns for solace, comfort and protection, over the cold, aloof parent who happens to drive the child to 51% of her doctor appointments?
It is difficult to find any good answers to these questions.
States considering a primary caretaker presumption should take note of the Minnesota experience. They should also consider whether they are defining caregiving functions in a sexist manner, and whether it is even possible to quantify the many tangible and intangible ways that parents contribute to the care of their children. They should consider the potential impact of a caregiving presumption on the interests of working mothers (and fathers.) They should ask whether it makes sense to “reward” the parent who can establish that he or she provided 51% of the child’s care with a judgment giving him or her 100% of it (sole custody.) They should consider whether establishing a presumption favoring awards of sole custody to the parent performing the largest quantity of specified caregiving functions might be harmful to the bond a child may have established with the other parent, or with both parents. They should consider whether focusing exclusively on early patterns of caregiving entrenches gender roles, or impedes growth and change. They should question whether deciding custody in this way really has much at all to do with children’s best interests, or whether it is really more about protecting parents – specifically, parents of the more fragile sex — from the “terror” of not winning the title of sole custodian. Most importantly, they should ask whether and why the comparative performance of specified caretaking tasks should be weighted more heavily than other, arguably more important factors, such as the quality of care a parent provides and the strength of the bond between child and parent.
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