The era of equality-oriented feminism that began in the 1970s and resulted in the gender-neutralization of laws in the 1980s was relatively short-lived. It was followed close-upon by a movement opposing equal rights, and demanding, instead, special legislation exclusively for the benefit of women. This movement, at times, has included a demand that even the legislative processes by which such legislation is secured be reserved exclusively for women. For example, male victims of domestic violence reportedly were not permitted to testify at Congressional hearings when the federal government’s entry into the field of domestic violence was under consideration. Those hearings yielded a Violence Against Women Act.1 Objecting to proposed changes to custody laws “because they are deliberately gender neutral,” feminists have made similar demands for the exclusion of men from legislative hearings on proposed changes to custody laws.2
The last decade of the twentieth century saw a flurry of special interest legislation, and the trend has continued unabated into the first and second decades of the twenty-first century.3 Federal and state governments have even gone so far as to pass laws directing courts to issue outcomes favorable to specific women in pending custody proceedings regardless of what the judge assigned to the case has determined the facts to be. The Civil Contempt Imprisonment Limitation Act4 and the Elizabeth Morgan Act,5 for example, legislatively freed a mother who was illegally concealing a child in violation of the father’s court-ordered visitation rights. The legislation directed the court not to enforce its own order.
Men, for their part, got “responsible fatherhood” programs. The objective was said to be to help men to be better fathers. The focus, however, was not on educating men about child development, or teaching them how to raise children. Rather, the stated objective was to enhance the flow of money from male parents to female parents. Responsible Fatherhood grants have been used to fund workshops for unemployed and underemployed fathers, the goal being to increase male compliance with family support orders; to train child support enforcement personnel; and to provide direct grants of millions of dollars to state child support enforcement agencies.6
Feminist legislative enactments at the end of the twentieth century and the beginning of the twenty-first century have tended to be premised on stereotypes of men as violent, oppressive, privileged, and irresponsible; and stereotypes of women as passive, nonviolent, instinctively protective of children, dependent, and victimized. It is not surprising, therefore, that arguments for the resurrection of the maternal preference are being advanced.7
Meanwhile, Professor Daniel Amneus, reacting to the historical preference for mothers in custody cases, and to increased marginalization of males in general, published a book in 2000 making the case for the establishment of a preference for fathers in custody cases.8
Notwithstanding the trend toward greater polarization of the sexes in the twenty-first century, it does not seem likely that an explicit maternal preference will be fully restored to American custody jurisprudence at any time in the near future. It seems even less likely that a paternal preference as propounded by Professor Amneus will be established. Significantly more women than ever before have chosen to pursue careers outside the home than to devote themselves full-time to nurturing children. In fact, women now outnumber men in managerial and professional occupations, and there are roughly an equal number of women and men in the workforce in general. In 2010, for example, 57.4% of professional positions, 68.9% of sale and office positions, and 56.8% of service jobs were held by women. The unemployment rate is higher now for men than for women. In 2010, the unemployment rate for men was 10.5%; for women, it was 8.6%. In that year, 71.3% of mothers with minor children worked outside the home; and this rate has held steady for several years.9 Meanwhile, social acceptance of the performance of child-nurturing functions by fathers seems to be increasing, albeit at a somewhat slower rate than the social acceptance of women’s performance of traditionally male functions has progressed. These forces, together with the obliteration of any meaningful qualitative difference between parental visitation and joint physical custody rights, have contributed to a general movement toward shared parenting and equality as the paradigms for child custody outcomes.
Of course, it is never possible to predict the future with absolute certainty. It seems likely, though, that the momentum for shared parenting will operate, at least for the time being, as a counterbalance to any movement for the resurrection of sex-based preferences in custody law.
As the battles for sole ownership of children rage on, it may be hoped that some day, when the dust has cleared, somebody will notice that the children have been there all along, watching. They are waiting for adults to think about – to really think about – what is in their best interest.
The History of Custody Law is available in paperback and as a Kindle e-book:
- Cathy Young, The Sexist Violence Against Women Act, WALL ST. J. A15, March 23, 1994. ↩
- Chris Cobb, Feminists Might Be Granted Own Hearing on Divorce Law, NATIONAL POST, July 5, 2001; Donna LaFramboise, When Dad Becomes a Dirty Word, NATIONAL POST, June 14, 2001; Ontario Women’s Network on Custody and Access press release , June 19, 2001. ↩
- In addition to the federal Violence Against Women Act (Title IV, §§ 40001-40703 of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, codified as amended in scattered sections of U.S.C.), other examples of special interest legislation for women include, inter alia: programs to educate men and boys not to be violent toward women and girls; programs to address the “heightened vulnerabilities of women and girls to HIV that are targeted specifically at reducing HIV infection rates among women and girls;” mandated use of “gender-specific indicators to monitor progress on outcomes and impacts of” programs designed to reduce women’s HIV infection rates; mandates for executive branch participation in “activities to enhance educational, microfinance, and livelihood opportunities for women and girls.” 22 U.S.C. § 7611 (2012). Further examples include: laws prohibiting female genital mutilation while encouraging male genital mutilation, compare 18 U.S.C. § 116 and 22 U.S.C. § 7611 (2011); establishment of an Office of Women’s Health within the Centers for Disease Control, 42 U.S.C. § 242S (2011); establishment of an Office of Women’s Health within the Health and Human Services Department, 42 U.S.C. § 237a (2011); establishment of an Office of Women’s Health and Gender-Based Research, 42 U.S.C. § 299b-24a (2011); establishment of a national data system and clearinghouse on research on women’s health, 42 U.S.C. § 287d-1 (2011); establishment of Women’s Business Center programs, 15 U.S.C. § 656 (2011); establishment of an Office of Research on Women’s Health, 42 U.S.C. § 287d (2011); establishment of an Interagency Committee on Women’s Business Enterprise and Women’s Business Enterprise Development Council programs, 15 U.S.C. §§ 7101, 7107 (2011); grants to programs and to individual women to further women’s educations and advance their careers in science and engineering, 42 U.S.C. § 1885a (2011); state battered women’s protection acts; programs for female offenders with children but not for male offenders with children, see, e.g., MINN. STAT. § 241.70 (2012). The Patient Protection and Affordable Care Act of 2010, Public L. 111-148 (codified as amended in scattered sections of U.S.C.) contains a host of special protections exclusively for women. In addition to authorizing grants to private organizations exclusively for the purpose of improving women’s health, the Act (as codified at 42 U.S.C. §§ 300gg-13 and 18022 (2012)) requires private health insurance plans to cover “women’s health care needs” and to provide no-cost coverage of any preventive care and screenings recommended by the Health Resources and Services Administration (“HRSA.”) The HRSA’s Required Health Plan Coverage Guidelines require insurers to provide no-cost coverage of “comprehensive preventive services for women,” including the following preventive services for which men may be required to continue to pay: HIV screening and counseling; sexually-transmitted infections counseling; contraception (including birth control and sterilization for women; insurers may require men to pay for condoms and vasectomies); domestic violence screening and counseling; and health checkups annually or more frequently as recommended by a doctor. Men may still be required to pay for this coverage out of their own pockets. The cited statutes represent only a tiny fragment of the special interest legislation for the exclusive benefit and protection of women that has been enacted since the end of the era of equality-feminism. It is not an exhaustive list. See generally Nancy Levit, Feminism for Men: Legal Ideology and the Construction of Maleness, 43 UCLA L. REV. 1037, 1114 (1996) (“In many ways, current legal doctrines foster a separatist ideology. They reflect and reinforce the sharp separation of the genders.”) ↩
- Pub. L. 101-97, 103 Stat. 633 (1989) ↩
- D.C. CODE § 11-925 (2001). Ultimately, a federal court of appeals struck down the Elizabeth Morgan Act as an unconstitutional bill of attainder. Foretich v. U.S., 351 F.3d 1198 (D.C. Cir. 2003) ↩
- See 42 U.S.C. § 603 (2011); see also U.S. Dep’t of Health & Human Services press releases, June 18, 1999; January 2, 2003; May 9, 2003. ↩
- See, e.g., MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 12–28, 176–93 (2002); BARBARA K. ROTHMAN, RECREATING MOTHERHOOD: IDEOLOGY AND TECHNOLOGY IN A PATRIARCHAL SOCIETY (1989); Mary E. Becker, Double Binds Facing Mothers in Abusive Families: Social Support Systems, Custody Outcomes, and Liability for Acts of Others, 2 U. CHI. L. SCH. ROUNDTABLE 13 (1995); Mary Becker, Maternal Feelings: Myth, Taboo, and Child Custody, 1 REV. L. &WOMEN’S STUD. 133, 139 (1992) (asserting that “judges should defer to the fit mother’s judgment of the custodial arrangement that would be best”); Mary Becker, Strength in Diversity: Feminist Theoretical Approaches to Child Custody and Same-Sex Relationships, 23 STETSON L. REV. 701 (1994); Nancy S. Erickson, The Feminist Dilemma Over Unwed Parents’ Custody Rights: The Mother’s Rights Must Take Priority, 2 LAW & INEQ. J. 447 (1984); Martha Fineman, Dominant Discourse, Professional Language, and Legal Change in Child Custody Decisionmaking, 101 HARV. L. REV. 727 (1988); Mary Ann Mason, Motherhood v. Equal Treatment, 29 J. FAM. L. 1 (1990). ↩
- DANIEL AMNEUS, THE CASE FOR FATHER CUSTODY (2000) ↩
- BUREAU OF LABOR STATISTICS, U.S. DEP’T OF LABOR, REP. 1034, WOMEN IN THE LABOR FORCE: A DATABOOK 1, 8-9 Table 2, 18. Table 7, 28-38 Table 11 (2011). Id. at 1, 18 Table 7 (2011) ↩