Should Custody Law Be Abolished?

Dusty books

In a previous blog post1 I explained why custody designations still matter, in terms of their impact on legal rights. The bigger question behind that one is: Should custody labels still matter? To put it another way: Has the time come to relegate the whole concept of custody of children to the scrap heap of history?

The United Nations Convention the Rights of the Child

The question is not merely an abstract hypothetical. To the contrary, there appears to be a very definite trend, both in the United States and around the world, away from the concept of custody. The United Nations Convention of the Rights of the Child (“UNCRC”), for example, eschews the word custody. Instead, Article 9 of the UNCRC directs member countries to “ensure that a child shall not be separated from his or her parents against their will, except [in cases involving abuse or neglect, or where] a decision must be made as to the child’s place of residence.” Rather than referencing a  right of parents to custody of their children (referring instead to a child’s right to have the state order what it determines is in the child’s best interest), Article 9 requires member countries to “respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis….”

Shared parenting legislation

Nearly every U.N. country has signed onto the UNCRC. The U.S. Congress has refused to ratify it.2 Nevertheless, there is other evidence of a clear movement away from the concept of custody (or at least that particular word) in the United States, too. In particular, a growing number of states are transforming, or at least supplementing, their traditional custody laws with shared parenting and parenting plan legislation. These kinds of laws use terminology like primary residential responsibility and decision-making responsibility instead of physical custody and legal custody. Sometimes these laws expressly provide that parents may use other words besides “custody,” so long as the alternate terms are defined in a way that is understandable and enforceable.

Reducing acrimony and litigation

Understandably, not many family law mediators are enamored of the word custody. Fewer still are fans of the winner-takes-all, adversarial approach it connotes. Because neither parent wants to be the one who is deprived of that title and relegated to the role of “visitor,” it is a significant source of impasse in mediation. In many cases, it may actually be the only source of impasse. For this reason, many mediators will not address the issue (if they address it at all) until after all discussions of the details of the actual parenting time schedule and decision-making allocations have been completed.3

Any family court judge or attorney can attest to the fact that the lion’s share of litigation in family court involves a contest for ownership of the custody “prize.” If this incentive were removed, it stands to reason that there would be a sharp decline in litigation in family court. Parents would save literally thousands of dollars in attorney fees and related expenses like custody evaluators, forensic experts, witness fees, and so on.

Removing the winner-gets-the-kids concept would also remove the incentive for parents to focus on each other’s faults, and to “dig up dirt” on each other. It may not be reasonable to expect divorcees to co-parent blissfully, without conflict, but getting off to a less acrimonious start, one that encourages cooperation rather than competition, would certainly seem to have a greater chance of serving the interests of children than the existing system has.

The historical rationale

As explained in detail in other blog posts, and in my book, The History of Custody Law, the concept of custody has been around since earliest recorded human history. The traditional account provided by historians is that all through history, up until the Enlightened Age (i.e., the particular era of time in which the historian providing the account is living), children were viewed as economic assets having the  legal status of chattel. Under this view, an allocation of custody of a child between two parents was required for the same reason an allocation of ownership of any other marital property was required. The owner of property gets to make decisions about what to do with it, and who gets to use it. By dividing up a divorcing couple’s property, a court prevents future disputes over those kinds of decisions from arising. By the same token, “awarding” a child to one or the other parent makes it clear which parent gets to decide how to raise the child, who gets to spend time with the child, and how and when the time will be spent.

Those who have read my book, or who have actually read the cases that people cite for the proposition that custody was governed by principles of property law at some time in American history, know that is not true. In America, courts have always regarded the best interests of the child to be the paramount consideration in custody cases. It is true, though, that courts have been at a loss to discover a way to address the question of what is to happen to the children after a divorce other than to say that one or the other parent will get them and the other parent will have a right to  have contact with them from time to time – an outcome analogous to an award of title to property (custody) subject to an easement of use (visitation.)

Do “physical custody” and “visitation” labels make sense anymore?

In the nineteenth and early twentieth centuries, custody carried with it the power to determine at what times, and where, the noncustodial parent would be allowed to visit his child. Since a noncustodial parent’s contact with a child frequently occurred in the mother’s home, it made sense to call it visitation.

When courts began broadening visitation to include overnights and entire weekends, or even an entire week of time during summer vacations, the justification for calling it “visitation” disappeared. Accordingly, many states have enacted legislation requiring courts to use the term “parenting time” instead.

Since courts can and do designate a child’s “primary physical residence” even in cases where joint physical custody is awarded, it is difficult to see what essential function the term physical custody serves anymore. A parent who has the right to have possession of a child outside of the other parent’s home, even if only on alternate weekends, has a right to possession of the child on those weekends. Why not simply call it what it is, then — alternating periods of physical custody? More to the point, though, why even call it custody at all? Why not simply call any time a child spends with a parent “parenting time” and dispense altogether with calling one, the other, or both parents “physical custodians”?

Legal custody

Most (though not all) states distinguish between legal and physical custody. Legal custody refers to decision-making authority. Physical custody refers to the right to possession. Unlike physical possession time, which can be alternated between two parties throughout the year, decision-making authority is not as simple. A judge cannot simply decree that the mother will decide which school a child will attend half of the year, and the father will select the school for the rest of the year; or that the mother will decide whether their son will be circumcised during the first year of his life, and the father will make that decision the following year. Some kinds of decisions can only be made once.

It is not necessarily the case, though, that it is in a child’s best interest to give one parent sole authority to make all decisions affecting the child. It is possible, for example, that one parent may have greater knowledge of, and interest in, education, but not religion, while the other parent has a greater concern about religious upbringing than choice of schools. Allocating decision-making responsibilities in a more careful, reasoned manner would seem to serve children’s interests better than conferring the title of “legal custodian” with all decision-making power to one parent alone.

Third party custody

One way the custody concept is useful is in distinguishing parental rights from the rights of third parties. As the U.S. Supreme Court and common law judges have said many times, a parent’s right to the custody of his or her children is superior to that of any other person. It is difficult to express this principle of law without using the word custody.

One way to do it would be to include the rights of physical possession and decision-making authority within the definition of parental rights. Currently, things like the right of access to medical records and the right to attend school conferences are included in statutory lists of parental rights. Rights of physical possession and decision-making authority should also be included in the list.

This approach would have the added advantage of reminding courts that custody is every bit as important a right as, say, access to school records. Just as a judge is not free to terminate parental rights of access to school records absent a showing that such access puts the child at risk of harm, so a judge should not be free to terminate a parent’s rights to physical possession and decision-making authority unless it is shown that such rights put a child at risk of harm. A judge should not have the power to remove children from their parents simply because he believes another person might have better parenting skills, or a greater ability to send the children to a private school, for example.

Of course, there will always be situations involving child abuse, neglect or endangerment – or the death or mental or physical incapacity of a parent — in which a transfer of possession and/or decision-making authority to a non-parent will be necessary to protect a child from harm. There is no reason why these non-parental caretakers could not be called guardians rather than “custodians,” though.

Cordination with other laws

The biggest challenge presented by a proposal to eliminate custody from the law involves coordinating the change with existing law. A legislature considering eliminating it will need to review all of its statutes and administrative rules and regulations to ensure that eliminating the concepts of custodial and noncustodial parents from the law will not have unintended consequences, or make other laws and rules impossible to apply.

For example, how will the change affect state or federal housing assistance programs that  limit eligibility to custodial parents? Child support laws will need to be rewritten if they are couched in terms of custodial and noncustodial parents. Standards for modification of custody will need to be revised.

The effect on jurisdiction and enforcement in other states will also need to be considered. For example, many states have enacted a law known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA.) A state that is thinking about eliminating custody designations should consider not only the impact the change will have on how the UCCJEA is applied, but also how it will impact the other laws, and variations on the UCCJEA, that other states have enacted.

International law will also need to be considered. The Hague Convention, for example, provides ample means for securing an abducted child’s return on behalf of a custodial parent. Securing the return of a child without a custody order in place may be more problematic.


Eliminating the concept of routinely making awards of custody of children whenever their parents do not live together admittedly would be a radical departure from thousands of years of legal tradition. It may not be something that can be achieved overnight, or  with a single stroke of a pen. Nevertheless, at a time when nearly every country in the world takes pride in itself for conceiving of children as human beings rather than property, it could be worthwhile for more policy-makers to give serious consideration to moving away from the routine judicial practice of making what amount to declarations of child ownership anytime two parents do not live together.

My book, The History of Custody Law, is available in paperback and Kindle e-book formats at

Purchase The History of Custody Law

  1. “Why the Custody Label Matters”
  2. Various reasons have been given for Congressional refusal to ratify the UNCRC. For example, members of Congress have expressed concern that it might have the effect of outlawing corporal punishment; or that it might mean that children cannot be put to death, or imprisoned for life without possibility of parole; or that farmers could no longer require children under 12 to work under dangerous conditions. There has also been a concern among fiscal conservatives that the provisions classifying education, nutrition, health, and recreation as rights could create significant new entitlements for children, resulting in unfunded mandates.
  3. See, e.g., McKnight, Marilyn S. and Stephen K. Erickson, The Plan to Separately Parent Children After Divorce, in Divorce and Family Mediation 129-54 (Jay Folberg et al., eds. 2004.)

Improving the “cooperation” factor

In many states, cooperativeness on the part of both parties is a precondition to a judicial award of joint custody.

The rationale for this requirement is that ordering people to reach joint decisions will be an exercise in futility if they refuse to communicate, or if one or both of them insists on absolute control. It is reasonable to require at least some possibility of cooperation as a pre-condition to an award of joint legal custody.

It is not as clear why cooperation should be a necessary precondition to an award of joint physical custody, unless a state has defined joint physical custody in such a way as to require the parties to work out their own parenting time schedule without need for court involvement. No state has defined the term that way, though. Accordingly, reformers may want to consider whether this requirement should be made to apply to awards of joint legal custody, but should not necessarily serve as a bar to awards of joint physical custody.

Discouraging uncooperativeness

A person seeking sole custody can easily circumvent an award of joint custody by being uncooperative and uncommunicative. Obviously, this is not in children’s best interests. In most cases, it would be better for children if their parents would cooperate and communicate with each other.

One way to correct this problem would be to add to the list of “best interest” factors one that addresses the reasonableness of a party’s refusal to cooperate or communicate. Better yet, the “cooperation” precondition to joint custody could be made subject to an exception for those cases in which a party unreasonably refuses to cooperate or communicate. This would have the prophylactic benefit of signaling to a party who is considering using obstructionist tactics that the strategy will not work. Of course, it would be unreasonable to imagine that making this one change would eliminate all conflict between divorcing parties, but it would at least remove one of the bigger incentives to intensify conflict under existing statutes.1

The “unreasonableness” limitation

Sometimes a person may have a legitimate reason for being unable or unwilling to cooperate or communicate with someone. Certainly a parent who has been unable to communicate with the other parent because the other parent is concealing herself from him should not be made to suffer any adverse consequences from the other parent’s conduct. A strong case can also be made that a parent who has become aware of the other parent’s physical or sexual abuse of the child should not be faulted for taking steps to protect the child. And a parent who has been physically abused by the other parent may reasonably be expected to be unwilling to communicate with the abuser. Any legislation that normally disadvantages a person who is shown to be uncooperative or uncommunicative should allow for situations in which a refusal to communicate or cooperate is reasonable under the circumstances.

My book, The History of Custody Law, is available for purchase in paperback or as a Kindle e-book at:

  1. Wisconsin has adopted this proposal. See WIS. STAT. § 767.41 (5)(am)(10) (2012).

Improving Statutory ‘Best Interest’ Factors


With broad, fundamental changes to custody law under serious consideration in North Dakota and other states, looking at ways to improve existing “best interest” statutes may seem a bit mundane. The broad, sweeping changes that are being enacted, however, typically leave existing statutory lists of “best interest” factors intact. The North Dakota shared parenting ballot measure, for example, would only establish a presumption that equal shared parenting is in a child’s best interest. Presumptions are rebuttable. Since the proposed amendment leaves the existing list of “best interest” factors intact, a court applying this statute, as amended, would naturally conclude that equality must be ordered unless the “best interest” factors support a different kind of arrangement (such as sole custody.) Accordingly, even if the North Dakota amendments pass, the “best interest” factors will continue to play a significant role in custody decisions.1

The next few blog posts will look at the kinds of improvements that might be made to existing lists of “best interest” factors.

Disposition to permit frequent and continuing contact with the other parent

The parties’ relative dispositions to encourage and permit frequent and continuing contact by the other parent with the child is the most recent addition to many states’ lists of “best interest” factors.2 This factor is not often determinative, by itself, of a custody issue. Nevertheless, taken in conjunction with other factors, it might tip the scale in favor of the innocent parent if the other parent is engaging in alienating behavior or interfering with another person’s parenting time. It also provides at least some disincentive to try to “hog” parenting time for oneself in order to establish oneself as the child’s primary caregiver and so on.

Proposed lifestyle changes

One criticism of “best interest” factors is that they focus entirely on past behaviors and present circumstances, locking people into caregiving patterns that may not necessarily be in children’s best interests in the future.

Responding to this concern, the state of Wisconsin has added the following factor to its “best interests” list:

The amount and quality of time that each parent has spent with the child in the past,
any necessary changes to the parents’ custodial roles and any reasonable life-style
changes that a parent proposes to make to be able to spend time with the child in the

The wording of this factor reflects two major departures from the “primary caregiver” standard. Courts historically have interpreted the “primary caregiver” factor as requiring them to conduct a quantitative analysis of the amount of time each parent has spent performing caregiving functions. By inserting the words “and quality” the legislature is directing courts to consider not only the quantity of time a parent has spent caring for a child, but also the quality of the time spent.

Even more significant than this is the addition of the second clause: “any necessary changes to the parents’ custodial roles and any reasonable life-style changes that a parent proposes to make to be able to spend time with the child in the future.” The addition of this new language about the future acknowledges that caregiving patterns are not static, and that people are adaptable to change.

About this new language, commentator Thomas J. Walsh has observed:

It offers a parent, who entered into an agreement with his or her spouse to be the bread winner in the family, the opportunity to reassess that role in light of the divorce. That parent would have the opportunity to change that role of bread-winner-only to the role of bread winner and caretaker. When two people, contemplating an indefinite marital union, enter into an agreement to structure their lives in a certain way in order to maximize efficiency, it is not fair to penalize one parent because he or she failed to consider the effect of that decision if the parties divorced.4

Of course, an argument can be made that custody decisions should focus on what is best for children, not on fairness to parents. Allowing a court to consider what changes a parent may be able to make going forward doesn’t just promote fairness to parents, though. It also promotes the best interests of children. Willingness to change, and adaptability to change, are both key to good parenting.

The problem with a factor that is worded in this way is that it requires a court to speculate about the future. Since anyone can promise anything they want about how they plan to change in the future, it would seem fairly easy for this factor to be misused. Consequently, it might be prudent for a legislature that is considering adding this factor to its list to also add a factor dealing with a parent’s ability and willingness to carry through with proposed lifestyle changes. Alternatively, a party’s failure to carry through with proposed changes that formed the basis, or a partial basis, for a previous custody order might be made grounds for modification of the custody order.

To be continued…

These are just a couple of the changes that could be made to improve statutory lists of “best interest” factors. Future blog posts will explore other possibilities.

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

Purchase at

  1. The text of the proposed amendment may be viewed online at
  2. See, e.g., 1994 Minn. Laws ch. 630 (codified as amended at MINN. STAT. § 518.17, subd. 1(a)(13) (2012))
  3. WIS. STAT. § 767.41(5)(am)(4) (2011)
  4. Thomas J. Walsh, In the Interest of a Child: A Comparative Look at the Treatment of Children Under Wisconsin and Minnesota Custody Statutes, 85 MARQ. L. REV. 929, 970-71 (2002)

Custody law reform: letting the child decide

Twilight Zone - "It's a Good Life"

Twilight Zone – “It’s a Good Life” episode (1961)

The suggestion is sometimes made that custody decisions should not be based on either parental rights or a judge’s opinions about what is best for a child. Instead, children should be empowered to make their own choices as to custody. Since the child is the one who will be most impacted by the decision, this approach does have a certain amount of appeal.

The problem with it is that children are children, not adults. Their capacities for judgment and reason are not yet fully developed. This is why, as a society, we do not permit children to execute wills, enter into marriages, or be irrevocably bound by the contracts they sign. It is why we delegate to a parent or guardian the authority to make decisions on a child’s behalf. Until children attain a sufficient level of maturity and judgment, parents choose their school, religion, dietary regimen, and so on.

Just as a child generally is not mature enough to use good judgment when making those kinds of decisions, so a child is not likely to be mature enough to use good judgment when deciding on a custodian. For example, a child may be likely to select the one who is constantly giving her candy and keeping her entertained, and shun the one who makes her study and eat healthy food, even though placement in the latter parent’s custody is more likely to be in her best interests.

Even if a child has reached a sufficient level of maturity to make a wise decision, there would still be a big problem with requiring a child to select one or the other parent in the event of a divorce or breakup of her parents’ relationship. Requiring a child to take sides in a custody battle is “empowering” to a child only in the way that giving a prisoner a choice between a firing squad or a gas chamber is “empowering” to the prisoner.

Putting a child in the position of having to hurt the feelings of one or the other of his parents is very likely to impair the child’s relationship with that parent. Worse, it will almost certainly damage a child psychologically. Children of divorce are already at risk of internalizing responsibility for their parents’ divorce. They should not be subjected to the additional risk of internalizing responsibility for a parent’s feelings of rejection. A person’s internal attribution of control over a negative event leads to depression and other mental health problems.1

Allowing children to make their own custody decisions also creates an incentive for adults seeking custody to compete for the child’s affections. Competition is sometimes a good thing, but it is not necessarily a healthy thing in this context. A parent competing with the other parent for the child’s affection will have an incentive to prevent or discourage the child from developing a healthy relationship with the other parent. This might be accomplished by limiting the amount of time the child is permitted to spend with the other parent, and/or by disparaging or criticizing the other parent in the child’s presence. A competing parent will also have an incentive to try to influence the child by doting on him, being overly generous, and withholding discipline. None of these things is healthy for children.

Courts already encounter these kinds of problems because the child’s preference is a factor that they consider when deciding custody. The problems can be expected to intensify considerably if the child’s preference were made the determinative or presumptive basis for every custody decision.

When formulating general policy concerning the custody of children, it might make sense to consider children’s preferences concerning the kind of custodial arrangement to which they are subjected. For example, it might be reasonable to consider statistical evidence concerning whether children prefer sole vs. joint custody arrangements. Making a particular custody decision turn entirely, or even primarily, on an individually identifiable child’s expression of preference, however, does not.

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

Purchase at

  1. See Christopher Peterson & Martin E.P. Seligman, Causal Explanations as a Risk Factor for Depression: Theory and Evidence, 91 Psychol. Rev. 347 (1984); see also Gall v. Gall, 336 So. 2d 10 (Fla. Ct. App. 1976) (holding that allowing a child to choose where he wants to live at a particular time is not in children’s best interests because it invites disciplinary problems); Ralston v. Ralston, 396 S.W.2d 775 (Ky. 1965) (same.)

Primary Attachment Figures

Harlow's surrogate mother experiment

Harlow’s surrogate mother experiment

Because children may suffer emotional or psychological damage if they either are not allowed to form an attachment to a caregiver, or are separated from a person to whom they have formed an attachment, it could make sense to apply a custodial preference for the person to whom a child has formed an attachment.

Attachment theory

Attachment, in the psychological context, simply means a strong and lasting emotional bond between two people.1 It may be unilateral or bilateral. A person may form an attachment to a child who has not formed an attachment to that person; and a child may form an attachment to a person who has not formed an attachment to the child.

Attachment theory was first formally propounded by John Bowlby.2 He theorized that separating infants from their mothers impaired children’s social, emotional and cognitive development. Observing that children separated from their mothers experience anxiety even when they are provided adequate food from another source, he concluded that a special bond between a child and a mother exists, and that it cannot be explained in terms of behavioral conditioning linked to the mother’s nursing of the baby.3 He postulated that children are born with an innate need to be close to a primary caregiver, a need that evolved in humans and other animal species because its existence tended to improve a child’s chances for survival. According to Bowlby, people are born with an innate desire stay close to a caregiver, at least when under stress or threatened.4 He and other proponents of the evolutionary theory of attachment have suggested, further, that people are innately pre-programmed to engage in certain kinds of behaviors (crying and smiling, for example) that will stimulate pre-programmed caregiving responses in human adults. A child’s attachment, therefore, is not necessarily to the person who provides her food, but to the person who responds to the child’s needs – which can include, in addition to food, such things as protection and comfort.

To determine whether the source of an infant’s attachments is nature or nature, twentieth century researcher Harry Harlow conducted a series of experiments on rhesus monkeys. He found that monkeys who were raised in isolation from birth tended to die, behaved abnormally, and had difficulty interacting with other monkeys. They also tended to lack caregiving skills upon becoming parents themselves, many of them even abusing and neglecting their own babies. This demonstrated how attachment could be an evolutionary adaptation that would enhance a species’ chances of survival.5

Harlow’s most famous experiments involved separating rhesus monkeys from their mothers at birth, and raising them with different kinds of surrogate mothers. Some of these were made of cloth; others were made of wire. Some gave milk; others did not. He found that the monkeys would go to the wire surrogates only for milk, but would go to the cloth ones the rest of the time. When frightened, the monkeys would go to the cloth surrogate, not the wire one, even if the wire one gave milk and the cloth one did not. Neither the cloth nor the wire surrogates provided any actual protection for the infant monkeys. And monkeys raised with surrogates developed more normally as compared to those raised in isolation.

Harlow’s findings tend to support Bowlby’s evolutionary theory of attachment. Since the baby monkeys seemed to have the closest attachment to cloth surrogate mothers even when it was only the wire surrogate mother that provided them with food, this seems to suggest that sensitive response and security have more to do with attachment than conditioning does.

Konrad Lorenz’s experiments with goslings provides further support for the evolutionary theory of pre-programmed attachments. Lorenz placed half a batch of goose eggs under a goose mother, and kept the other half beside himself as they hatched. Goslings hatched by the mother followed her and looked to her for sustenance and protection. The others followed Lorenz and looked to him for sustenance and protection. In other words, geese follow the first moving object they see during the first few hours after hatching. When the goslings were mixed together in a box and then released, the ones that had been hatched near the goose mother went to her; the ones that had hatched near Lorenz went to him. This behavior occurred prior to any feeding. This strongly suggests that attachment is a pre-programmed response, not something that is learned through conditioning.6

A Freudian overlay

In 1973, Joseph Goldstein and Albert Solnit teamed up with Sigmund Freud’s daughter, Anna Freud, to publish a book called Beyond the Best Interests of the Child.7 It espoused a psychoanalytic approach to determining what is in a child’s best interests, one that essentially applied Sigmund Freud’s psychoanalytic theories to John Bowlby’s attachment theory. This book has had a tremendous impact on custody evaluations, and therefore on the practical development of custody law.

Freud and her colleagues observed that an infant develops a psychological attachment to an adult who is personally and emotionally involved with him. They theorized that the attachment consists of the baby’s superimposition of its libidinal interests on the events of bodily care (feeding and diaper-changing, for example.) They postulated that because of this early attachment, it is vitally important to a child’s psychological well-being for this first bond to remain uninterrupted.

Such primitive and tenuous first attachments form the base from which any further relationships develop. What the child brings to them next are no longer only his needs for body comfort and gratification but his emotional demands for affection, companionship, and stimulating intimacy. Where these are answered reliably and regularly, the child-parent relationship becomes firm, with immensely productive effects on the child’s intellectual and social development.8

“Unlike adults, who are generally capable of maintaining positive emotional ties with a number of different individuals,” they asserted, “Children lack the capacity to do so.”9 Since mothers are the ones who are biologically equipped to nurse their babies, it is easy to see how Freud’s theoretical framework could be used to support a preference for making awards of sole custody to mothers.

One difficulty with using Freud’s psychoanalytical libido-superimposition theory as a justification for a judicial preference for mothers is that Harlow’s experiments with surrogates demonstrated that primate attachment does not correlate directly with the meeting of a child’s libidinal need for food. The monkeys in his experiments demonstrated a greater attachment to cloth surrogates that provided no milk than to wire surrogates that did. Moreover, it is not necessarily true that the mother is the one upon whom the child superimposes its libidinal needs in every case. If a particular father does a greater share of the feeding, diapering and comforting of the baby than the mother, then the theory would support a preference for making an award of sole custody to the father rather than the mother in that case. The theory is not sufficient, by itself, to support a preference or presumption specifically in favor of mothers.

Significantly, researchers H. Rudolph Schaffer and Peggy Emerson found that attachment correlates closely with the person who responds most accurately to the baby’s needs and desires, not the person who spends the most time with the baby.10 This suggests that applying a presumptive preference for a child’s primary caregiver may actually be detrimental to a child’s health and development, in those cases where the child’s primary caregiver and primary attachment figure are not the same person. Such a presumption or preference may be in the best interests of a real or assumed primary caregiver (i.e., mothers), but custody law is supposed to be focused on what is in a child’s best interests, not what is in one or the other parent’s best interests. For this reason, a presumption or preference for a child’s primary attachment figure would seem to be an improvement over the presumptive preference for a child’s primary caregiver.

Unlike the primary caretaker presumption, a primary attachment preference associates directly with a child’s interests, not the interests of the parents. Because they take a quantitative approach to the evaluation of parental care, the primary caretaker and approximation principles reflect a greater concern with ensuring that a harder working parent’s efforts are rewarded than with the child’s psychological and emotional needs. A primary attachment presumption, by contrast, would focus directly on the child’s psychological and emotional needs rather than simply attempting to “reward” parents in proportion to the extent of their efforts to perform specified caregiving tasks.

Multiple attachments

A major difficulty with using attachment theory as a basis for establishing a preference for the person to whom the child has formed an attachment is that there appears to be no real basis for the assumption that children are incapable of forming psychological attachments to more than one person. Nor does there appear to be any evidence for the assumption that multiple attachments are detrimental to a developing child’s emotional psychological health and well-being. To the contrary, available empirical evidence contradicts both assumptions. Schaffer and Emerson, for example, found that from birth to three months of age, babies respond and attach equally to any caregiver; between four and nine months, a baby tends to have a primary attachment to one person, but also maintains secondary attachments to others; and by nine months babies form multiple attachments. Further, they reported that at eighteen months, a child’s main attachment figure was the mother for only about half of the children studied, and the father was the main attachment figure for nearly all of the rest. Also – and contrary to Freud’s libidinal-superimposition theory — they found that the most important factor in forming attachments is not who feeds and diapers a child, but who plays and communicates with her.11

Parental rights

Because a child may have a strong attachment to someone who is not the child’s parent, a presumptive custodial preference for a child’s primary attachment figure conflicts with the doctrine of parental rights. Under a primary-attachment rule, if a live-in nanny can prove that children have established a stronger attachment to him or her than to their mother or father, then the nanny would have a presumptive right to custody of their children notwithstanding the parents are both fit and capable, and have not abandoned their children. While some states may be prepared for a brave new world in which natural biological relationships have no special legal significance, it is doubtful that very many legislators and judges are prepared to abolish the notion of parental rights completely, particularly since the United States Supreme Court has granted them recognition as constitutionally protected fundamental rights. Accordingly, while the principle that children normally should be placed in the custody of the person(s) to whom they have formed the closest attachment(s) might be considered as a factor in custody cases, it may be questioned whether it should be elevated to the level of a presumption.

Attachment theory as an argument for presumptive joint custody

Since children are capable of forming multiple attachments, and since most children form attachments to both of their parents, attachment theory would seem to support a presumptive award of shared custody at least as much as it would support a preference for sole custody.

Moreover, the United States Supreme Court has declared that parents must be presumed to act in the best interest of their children. Most child development experts agree that strong, healthy bonds between a child and each of his parents are in a child’s best interests. Therefore, attachment theory arguably may support a legal presumption that joint parental custody is in the best interests of children.

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

Purchase at

  1. JOHN BOWLBY, 1 ATTACHMENT (1969) (“lasting psychological connectedness between human beings”); M.D.S. Ainsworth, The development of infant-mother attachment, in REVIEW OF CHILD DEVELOPMENT RESEARCH (B. Cardwell & H. Ricciuti eds., 1973.)
  2. John Bowlby, The Nature of the Child’s Tie to His Mother, 39 INT’L. J. PSYCHOANALYSIS 350-71 (1958)
  3. The prevailing belief at the time had been that a mother’s act of nursing children conditions children to form attachments to their mothers. Children, it was thought, could expect to be rewarded with milk for seeking physical closeness with their mothers; and could expect to be punished with hunger if they did not. See J. DOLLARD AND N.E. MILLER, PERSONALITY AND PSYCHOTHERAPY (1950).
  5. H.F. Harlow and R.R. Zimmermann, The development of affective responsiveness in infant monkeys, 102 PROC. AMER. PHIL. SOC’Y 501-09 (1958)
  6. Konrad Lorenz, Der Kumpan in der Umwelt des Vogels. Der Artgenosse als auslösendes Moment sozialer Verhaltensweisen, 83 J. ORNITHOLOGIE 137–215, 289–413 (1935).
  8. Id. at 18.
  9. Id. at 13.
  10. H. Rudolph Schaffer and Peggy E. Emerson, The Development of Social Attachments in Infancy, 29 MONOGRAPHS OF THE SOC’Y FOR RES. IN CHILD DEV. no. 94 (1964)
  11. Id.

The approximation rule, revisited


Because the primary caretaker presumption granted sole custody to a parent on the basis of which parent spent the majority of time caring for the child, it has been criticized for discounting the importance of the 49% caregiver, and giving the 51% caregiver a windfall. Some have suggested that a fairer approach would be for a court to  apportion time between the parties on the basis of how they apportioned time between themselves before the court became involved. Of course, a court cannot determine with exact certainty how much time each parent spent caring for the child in the past. Proponents argue, though, that a court should strive for a result that comes as close to the pre-divorce allocation as possible.1

This approach, known as the “approximation rule,” was first suggested by Elizabeth Scott.2  It has been adopted as the rule of decision in West Virginia.3 The American Law Institute endorses it.4

The approximation rule is an improvement over the primary caretaker presumption in the sense that it better allocates rewards to the parents in proportion to the child-raising services they have provided. Instead of giving 100% of the custody “reward” to a parent for doing 51% of the caregiving, while giving 0% of the custody “reward” to the parent who did 49% of the work, the approximation rule attempts to assign parental responsibility to the parties in approximately the same proportion they exercised prior to the breakup of their relationship. This seems to be fairer to each parent than the primary caretaker and presumptive maternal sole custody rules are. Instead of applying a winner-takes-all approach, each party “wins” only that amount of time which he or she has earned through the performance of child-raising services.

The rule also seems — at first blush, anyway — to be likely to promote children’s best interests by giving parents an added incentive to spend as much time with their children as possible. Knowing the amount of time they will get to spend with their children after a divorce or relationship breakup is directly tied to the amount of time they spend caring for their children gives each parent an incentive to spend as much time with the children as possible.


The approximation rule is vulnerable to the same kinds of criticisms as the primary caretaker presumption is.

Definitions of caregiving, for the purpose of determining how much time each parent has spent “caring” for a child typically are sex-biased. Judges and legislators tend to include tasks that traditionally are performed by women in the definition, while omitting tasks traditionally performed by men from the definition.

Even if a purely time-based quantitative measure were applied, it may be questioned whether it makes sense to lock a couple in to caregiving patterns that were established during a child’s infancy. Children’s needs, and parents’ capacities to meet them, vary over the course of a child’s life. It may not make a whole lot of sense, from a child development point of view, to decide how much time an adolescent or teen boy spends with his father on the basis of how much time the mother, as compared to the father, spent nursing him when he was a baby.

Moreover, a couple’s circumstances rarely are the same after a divorce as they were before the divorce. The fact of separation, in itself, necessarily alters the allocation of responsibilities. Economic realities are such that it often is necessary for both parents to work outside the home following a divorce, as there will be two households to maintain following a divorce, not just one. Accordingly, it may not be feasible – let alone desirable, or fair – to try to “lock” a couple into an arrangement that existed at a time when their circumstances were radically different from what they are after the divorce.

Like the primary caretaker presumption, the approximation rule is subject to the criticism that it ascribes greater importance to quantity than to the quality of caregiving, and it overlooks the importance of the strength of the attachment between a parent and a child.5

Finally, because the rule gives parents an incentive to spend as much time as possible with their children relative to the time spent by the other parent, it also gives them an incentive to prevent, limit or even interfere with the other parent’s ability to spend time with the child. This is a critical concern in cases involving unmarried parents, where state laws automatically give the mother an exclusive right to sole custody at the time of birth, and the father has no legally enforceable right to spend time with his child until he obtains a court order addressing custody and visitation. In a state that has adopted an unqualified version of the approximation rule, an unmarried mother who wished to completely excise the father from the child’s life would have the absolute power to do so simply by exercising her exclusive custodial rights to prevent the father from spending any time at all with his child before he is able to get into court. If she succeeds in preventing the father from having any contact at all with his child, then a consistent application of the approximation rule would require the court to reward her with 100% of the custody rights and parenting time, and to allow the father to have no rights of access to his child at all.


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

Purchase at


  1. American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations (2003); Elizabeth S. Scott, Pluralism, Parental Preference and Child Custody, 80 Cal. L. Rev. 615, 619 (1992)
  2. Scott, supra note 1 at 617
  3. W. Va. Code § 48-11-106 (2000).
  4. American Law Institute, supra note 1.
  5. See, e.g., Shelley A. Riggs, Is the Approximation Rule in the Child’s Best Interests? A Critique from the Perspective of Attachment Theory, 43 Fam. Ct. Rev. 481 (2005) (critiquing the approximation rule from the point of view of attachment theory); see also Joan B. Kelly, Developing Beneficial Parenting Plan Models for Children Following Separation and Divorce, 19 J. Am. Acad. Matrim. Law. 237, 241 (2005) (arguing that the approximation rule is not an improvement over the “best interests of the child” standard.)

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.



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

Purchase at



  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)

Gender Polarization


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:

Purchase at


  1. Cathy Young, The Sexist Violence Against Women Act, WALL ST. J. A15, March 23, 1994.
  2. 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.
  3. 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.”)
  4. Pub. L. 101-97, 103 Stat. 633 (1989)
  5. 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)
  6. 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.
  7. 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).
  9. 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)

De Manneville v. De Manneville: the most notorious custody decision in the history of Anglo-American law

Mrs Margaret de Manneville, nee Crompton

(painting of Margaret De Manneville, née Crompton, by an unknown artist, ca. 1800)

One of the early nineteenth century attempts to persuade British courts to re-establish an explicit preference for mothers occurred in 1804. It was not successful. Neither the law courts nor the chancery courts could be persuaded to accept the argument that children of tender years should never be separated from their mothers. The cases were Rex v. De Manneville1 and De Manneville v. De Manneville.2 They may very well be the most frequently cited cases in the history of Anglo-American child custody law.

The material facts in these cases were not really in dispute. Although not initiating a divorce or a legal separation proceeding, Mrs. Margaret De Manneville alleged that her husband was such an extremely unpleasant man that she moved out of the family home, taking the couple’s then-eight-month-old daughter with her. Mr. De Manneville then came to her home and took the child back with him. Mrs. De Manneville applied to the King’s Bench for a writ of habeas corpus to require the father to release the child to her. Lord Ellenborough denied the writ, holding that a married father is entitled to custody of his children while he is still married to their mother, even if the children are very young.3 She then turned to the chancery court for equitable relief. Father’s counsel argued to the court that unless a child was in danger of being harmed, “the law is clear that the custody of a child, of whatever age, belongs to the father.”4 Contrary to what has been written in peer-reviewed legal histories in scholarly journals, the judge of the chancery court hearing the case, Lord Eldon, did not adopt that language. He did, however, refuse to use the equity power of the Chancery Court on the mother’s behalf. The ruling touched off a wave of outrage both in England and abroad, the ripples of which continue to be felt to this day.

The assertion that custody always belonged to the father was not true even when it was made. To begin with, unmarried mothers possessed a sole and exclusive right to custody of their children. Only married fathers could claim any right to custody of their children; unmarried fathers could not. More to the point, earlier chancery court decisions had held that the chancery court’s paramount concern was with what was in a child’s best interests, and that the state’s interest in advancing a child’s best interests could override a father’s legal rights. If maternal custody served a child’s interests better than paternal custody did, then a court of equity would award custody to the mother irrespective of any legal rights the father might assert. Those earlier rulings were consistent with established principles of equity jurisprudence.

Lord Eldon’s ruling in De Manneville did not alter the common law doctrines that fathers could acquire custody rights only through marriage to the mother and that unmarried mothers had an exclusive right to custody of their illegitimate children.5 That was not a fair interpretation of De Manneville. Lord Eldon’s ruling did not hinder a married mother’s ability to move away from her husband and take the children with her if grounds for a divorce or a legal separation (both of which were called “divorces” at that time) were proven. The ruling in De Manneville meant that a married woman had no legally enforceable right to move away from her husband and take the couple’s children with her unless she had grounds for either an absolute or a limited divorce, or the children were at risk of being harmed.




Lord Eldon explained the rationale for his ruling in terms of the legal doctrine of coverture. Under that doctrine, the law treated a husband and wife  as one person. The woman’s status as a separate juridical person was said to be “suspended during the marriage, or at least is incorporated and consolidated into that of the husband.”6 The husband possessed both his own and his wife’s rights, just as he was responsible for his own and his wife’s debts, obligations, torts and crimes. An unmarried woman (feme sole), by contrast, possessed all of her own rights and responsibilities, including the right to sole custody of her children. According to Lord Eldon, coverture had the effect of suspending all of a married woman’s rights, even her right to custody of children.

After Lord Eldon’s edict in De Manneville, English law allotted presently-existing  parental rights, including custody, only to unmarried women and married men. Married women and unmarried men had no presently-existing right to custody of their children.

The doctrine of coverture had some unexpected consequences. For example, on the authority of De Manneville, English courts held that a married or separated woman could not use the writ of habeas corpus to get custody of a child unless the child was in the care of a person other than the father.7 Yet mothers of illegitimate children were able to use the writ to secure custody of their children from anybody, even the father. With respect to custody rights, then (though certainly not in other ways), the law seemed to give women who fornicated an important legal advantage that it denied to women who took the moral high road by “saving themselves for marriage.”


The natural rights of parents


It is often said that De Manneville stands for the proposition that English common law treated child custody as the natural right of fathers, but not mothers. In fact, however, English common law treated child custody as a natural right of mothers, not of fathers.

natural right is one that does not require the enactment of a statute, the initiation of a court proceeding, or the formation of a contract; it arises naturally. Legal rights, by contrast, have their origin in positive law, i.e., man-made laws, contracts and declarations. Since a woman’s right of custody arose from the fact of giving birth, irrespective of whether or not she had performed the additional step of entering into a marriage contract, and irrespective of any legal enactment giving her the right of custody, it came within the meaning of a natural right. English law did not treat a man as having a right to custody merely by virtue of fathering a child. Rather, a father’s right came into existence if and only if he had undertaken the additional legal step of entering into a valid contract of marriage with the mother. It was only through coverture, as an incident of the contract of marriage to the mother, that a father acquired custody rights. That is to say, an English father did not have a natural right to custody of his children, but he might acquire a legal right to custody of his children by entering into a legally valid contract of marriage before their birth. So long as a woman remained unmarried, she retained her natural right to custody of her children. If she became married, then her husband acquired a legal right to custody of any children born to the couple during the marriage, and the mother’s natural rights were suspended for the duration of the couple’s marriage.

Lord Eldon’s ruling did not alter these particular principles. It reaffirmed them.


Limitations on the scope of De Manneville


A more fundamental misinterpretation of the De Manneville ruling – and one that is now almost universal – is that it gave fathers an “absolute right to custody.”8 As we have seen, this interpretation is completely false with respect to fathers of illegitimate children. They had no custody rights at all.

A married father did not have absolute rights, either. Nor were they even superior to the mother’s rights in every circumstance. The doctrine of coverture applied only so long as a married couple remained married. It had no application to the determination of child custody in a divorce proceeding. Whether the kind of divorce sought was an absolute or a limited divorce, custody of children generally went to the innocent party, and that person could be either the mother or the father.

In early nineteenth century England, a divorce could be granted only if the spouse from whom the divorce was sought was guilty of wrongdoing. Adultery was grounds for either kind of divorce, absolute or limited. A limited divorce (now called a legal separation) could also be granted on the basis of physical cruelty. Conduct of either kind was regarded as so highly immoral as to render a person unfit to parent. Accordingly, in the event of a divorce, custody of the children generally would be awarded to the party who was not at fault for the divorce. Depending on the circumstances, that could be either the father or the mother.

These were not the only possible bases upon which a court of chancery might award custody to the mother instead of the father. As Lord Eldon acknowledged in De Manneville, the chancery court had the power to award custody to the mother, whether or not grounds for a divorce existed, if doing so would protect a child from harm.9 Even after De Manneville, chancery courts recognized that harm to a child could be either moral or physical. If a married woman wished to separate from her husband and take the children with her, but she could not prove that he had committed adultery or that he had been physically cruel to her, she might nevertheless prevail by demonstrating that he had engaged in behavior, or adhered to beliefs, that could be a bad influence on a child’s moral development.


Paternal misconduct, bad moral character or poverty as grounds for an award of custody to the mother


In 1827, the chancery court had occasion to decide whether marital fault (adultery), standing alone, sufficed as grounds for an award of custody to the mother in a case in which neither party sought a divorce. Reasoning that marital misconduct makes a parent morally unfit to parent, the court ruled that adultery could indeed furnish grounds for removing a child from his father if the child was aware of the affair.10 If the father brought his paramour along with him on trips with his children, for example, he would be deemed unfit to parent. In so doing, he thereby forfeited all claim of entitlement to the custody of his children.11

Early English law, both before and after De Manneville, also recognized certain other kinds of conduct or circumstances, in addition to adultery, that rendered a father unfit to parent, and that would work a forfeiture of his custody rights. A father who was guilty of child abuse (“ill-treatment and cruelty”) thereby forfeited his right to custody of them.12 A father who permitted a daughter to engage in prostitution forfeited his right to custody of the daughter.13 Abandonment vitiated a father’s right to custody, as did neglect of a child’s financial, physical or educational needs.14

Courts treated a father’s insolvency as the legal equivalent of abandonment, even if his poor financial condition was due to circumstances beyond his control.15 Thus, a father’s financial inability to support his children was grounds for denying him custody.

Atheism, blasphemy, or a lack of religious convictions would also work a forfeiture of a father’s custodial rights, as the famous atheist poet Percy Bysshe Shelley learned in 1817.16


Equitable estoppel


A father also could lose custody rights by equitable estoppel. This could occur where a father had allowed another person to raise his child, particularly if he accepted benefits from the person, or if the child stood to receive an inheritance from the person.17


Ecclesiastical courts


The ecclesiastical courts were tribunals of the Church of England that had jurisdiction over all proceedings related to marriage. Although these courts did not have jurisdiction over custody, they did have jurisdiction to order spousal support (alimony.) They used that power to coerce fathers into ceding custody to mothers, penalizing them with higher alimony obligations if they failed to do so:


[B]y the 1820’s they were openly using this authority to manipulate child custody on behalf of the mother. The court defended this delicate financial blackmail on the increasingly familiar grounds that: ‘the welfare of the child would probably best be served under her maternal care.’18




Chancery courts, which did have jurisdiction over custody, were very receptive to maternal custody. Though chancery judges like Lord Eldon sometimes felt constrained by the English common law rule that married fathers have the right to custody of their children, this did not prevent them from making statements like, “I know of no act more harsh or cruel than depriving the mother of proper intercourse with her child.”19

In 1827, Lord Eldon awarded the custody of a daughter and two sons to their mother and not their father, on the grounds that the father was engaged in ongoing “scandalous” adultery and was therefore unfit to parent.20 This ruling was consistent with his statement in De Manneville that chancery courts may award custody to a mother notwithstanding the father’s legal rights, where doing so will protect a child from harm. Four years later, in Mytton v. Mytton21 the Chancery court declared that the children in that case were to remain with their mother, apparently because it deemed maternal custody to be in their best interests. By 1848, the chancery courts had firmly re-established as a principle of English equity jurisprudence that courts were not to award custody of children on the basis of the father’s legal rights, nor solely on the basis of marital fault or the sex of the parents. Rather, courts were to structure custody and access in a way that best advanced the interests of children.22 Beliefs about the impact of marital fault and parental sex on child development continued to be operative, but they were employed only as a method of determining what was in a child’s best interests. The best interest of the child was the overarching consideration in custody cases.



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

Purchase at



  1. 5 East 221, 102 Eng. Rep. 1054 (K.B. 1804)
  2. 10 Ves. 52, 32 Eng. Rep. 762 (Ch. 1804)
  3. Rex v. De Manneville, 5 East 221, 102 Eng. Rep. 1054 (K.B. 1804); see also Caroline Norton, The Separation of the Mother and Child by the Law of “Custody of Infants” Considered 33-37 (London, Roake & Varty 1838).
  4. De Manneville v. De Manneville, 10 Ves. 52, 63, 32 Eng. Rep. 762 (Ch. 1804)
  5. See Ex parte Knee, 1 Bos. & P.N.R. 148, 127 Eng. Rep. 416 (1804) (observing that at common law, the mother of an illegitimate child has the right of custody to the exclusion of the father.) Unfortunately, the venerable Sir William Blackstone later asserted, incorrectly, that under English law “a mother, as such, is entitled to no power, but only to reverence and respect.” 1 William Blackstone, Commentaries on the Laws of England 452-53 (Oxford, Clarendon Press 1765-69).
  6. 1 Blackstone, supra note 5 at 442. The coverture doctrine also helps explain why separation agreements came to be viewed as unenforceable. Because a husband and wife were regarded in law as a single entity, “a man cannot grant any thing to his wife, or enter into covenant with her….” Id.
  7. Ex parte Skinner, 9 Moore 278, 279, 27 Rev. Rep. 710 (1824).
  8. See, e.g., Young v. Young, 4 S.C.R. 3 (1993) (Can.) (citing De Manneville for the proposition that “At common law, the right to custody of children was originally  incontestable and reposed with the father to the exclusion of any claims of the mother”); Ann M. Haralambie, Handling Child Custody, Abuse and Adoption Cases 2 (1993) (describing fathers’ rights as “nearly absolute”); Christopher L. Blakesley, Child Custody and Parental Authority in France, Louisiana and Other States of the United States: A Comparative Analysis, 4 B.C. Int’l & Comp. L. Rev. 283, 292 (1981) (“nearly absolute”); Kenneth Brown, Customary rules and the welfare principle: Post-independence custody cases in Solomon Islands and Vanuatu, 21 J. Pac. Stud. 83-101 (1997) (“absolute right”); Cynthia Lee Starnes, Swords in the Hands of Babes: Rethinking Custody Interviews after Troxel, 2003 Wis. L. Rev. 115, 119 (2003) (citing De Manneville in support of a claim that England adopted the “Roman law” that “fathers had an absolute right to custody of their children”); Yuri Joakimidis, Back to the Best Interests of the Child: Towards a Rebuttable Presumption of Joint Residence 15 (Joint Parenting Association Policy Monograph, 2nd ed. n.d.) (describing father’s right to custody as “almost irrefutable”); cf. Blackstone, Commentaries On The Laws of England 372-73 (19th ed. 1857)
  9. See note 9, supra, and accompanying text.
  10. Ball v. Ball, 2 Sim. 25, 36-37 (1827).
  11. Wellesley v. Duke of Beaufort, 2 Russ 1, 38 Eng. Rep. 236 (1827)
  12. Whitfield v. Hales, 12 Ves. Jr. 492, 33 Eng. Rep. 186 (1806).
  13. Rex v. DeLaval, 2 Burr. 1434, 97 Eng. Rep. 913 (1763).
  14. Blisset’s Case, Lofft. 748, 749, 98 Eng. Rep. 897 (1767).
  15. Id.
  16. Shelley v. Westbrook, Jac. 266, 37 Eng. Rep. 850 (Ch. 1817)
  17. Colston v. Morris, Jac. 257, 22 Rev. Rep. 246 (1821); Lyons v. Blenkin, 1 Jac. 245, 37 Eng. Rep. 842 (Ch. 1821)
  18. Lawrence Stone, Road to Divorce: England 1530-1987, at 177 (1990) (quoting Kempe v. Kempe, 162 Eng. Rep. 669 (1828).)
  19. Ball v. Ball, 57 Eng. Rep. 703, 704 (1827)
  20. Wellesley v. Duke of Beaufort, 2 Russ 1, 38 Eng. Rep. 236 (1827); Ann. Reg. 293-313 (Ch. 1827).
  21. 162 Eng. Rep. 1298 (1831). As one commentator has observed:


    {T}he court of chancery will interfere to disturb the paternal rights only in cases of a father’s gross misconduct; such misconduct seeming, however, to be regarded with reference rather to the interests of the child than the moral delinquency of the parent. If the father has so conducted himself that it will not be for the benefit of the infants that they should be delivered to him, or if their being with him will injuriously affect their happiness, or if they cannot associate with him without moral contamination, or if, because they associate with him, other persons will share their society, the court will award the custody to another.


    James Schouler, Treatise on the Law of the Domestic Relations 360 (4th ed. , Boston, Little Brown & Co. 1889), citing, inter alia, Anonymous, 11 E. L. & Eq. 281, 61 Eng. Rep. 260 (Ch. 1851) (awarding custody to mother on basis of father’s immorality) and Warde v. Warde, 2 Phil. 786 (1849) (holding that a court of equity has “an absolute control over {children under seven} without regard to the peculiar common-law right of the father to the custody of all his children” and may award custody of older children to the mother if it is in the children’s best interests.)

  22. J.F. MacQueen, The Rights and Liabilities of Husband and Wife 351-54 (London, S. Sweet 1849); John F. MacQueen, A Practical Treatise on the Law of Marriage, Divorce and Legitimacy 174-75 (London, W. Maxwell 1860); Schouler, supra note 21 at 359 (“the courts of chancery, in assuming a liberal jurisdiction over the persons and estates of infants, soon made the claims of justice override all considerations of parental or rather paternal dominion, at the common law”); 2 Joseph Story, Equity Jurisprudence § 1341 (6th ed., Boston, Little Brown & Co. 1853); see also Barnardo v. McHugh, A.C. 388, 61 L.J. & Q.B. 721 (Eng. 1891) (observing that although the English law courts may not have enforced mothers’ rights, “in equity regard was always had to the mother….”)