(Photo: still image from the 1969 film, “Bob & Carol & Ted & Alice”)
For the first two-thirds of the twentieth century, marital fault was an important factor in custody cases. By law, the innocent spouse enjoyed a prima facie right to custody of the children in the event of a divorce or separation.1 Judges believed marital fault to be a good indicator of moral character. Moral character, in turn, was considered an important component of parental fitness. The Maryland Court of Appeals, in 1960, explained it this way:
/C/ustody of the child is usually awarded to the innocent party, not as a matter of punishment or reward, but because it is assumed that the child will be reared in a cleaner and more wholesome moral atmosphere…. /A person with a/ flagrant disregard of the law of the land, including the sanctity of an oath, as well as the moral code, which is well-nigh universally accepted by our society … should not be entrusted to guide the physical, spiritual and moral development of the child.”2
An early twentieth century family law treatise put it this way: “If the question is between husband and wife, the court will consider the cause of the estrangement between them, and the question which was at fault in the separation, as proper factors in determining the custody of the children….”3
The prima facie right of the innocent spouse to custody could be defeated by proof that a child’s best interests would be served by awarding custody to the guilty spouse in a particular case.4 In the case of daughters, disabled or unhealthy children, and of young children of either sex, the presumption reflected in the tender years doctrine overrode the presumption that custody should be awarded to the innocent spouse. The tender years doctrine established a presumption that it was in the best interests of children in any of these categories to be placed in their mother’s custody irrespective of any marital misconduct on her part.5
The idealization of maternal care that dominated child custody jurisprudence in 19th and 20th century America led many courts to extend the maternal preference embodied in the tender years doctrine to every custody case irrespective of the age of the child. This general maternal preference, like the tender years presumption, was rebuttable only by proof that the mother was actually a danger to the child.6 Thus, in many states the evolution of the tender years doctrine into a general maternal preference effectively eliminated the relevance of marital fault in contests between a mother and a father. Its relevance, in many states, increasingly became limited to cases in which a third-party sought to divest a father of custody.
In the 1960’s and 1970’s, America experienced both a sexual revolution and a second wave of feminism. Together, these movements yielded significant changes in family law.
Before the women’s movement of the 1960’s and 1970’s, a general societal expectation existed in the United States that a woman should abstain from sexual intercourse until she became married, and then should have sexual relations with only one man, her husband. 1960’s feminists viewed the expectation that a woman should “save herself” for marriage, and then commit herself to one man exclusively and for life, as emblematic of men’s enslavement of women.7 These societal expectations, they argued, prevented women from realizing their full human potential.8 Sexual liberationists happily agreed, at least with respect to the view that chastity and monogamy prevented women from leading fulfilling lives. Sexual liberals believed that women should be encouraged to enjoy sex, and to enjoy it with as many different partners as they desired.9
Leading feminists of the time viewed marriage as an oppressive institution, one by which men ensured their perpetual dominance over women. Beginning with Betty Friedan in 1963, they argued that it was a form of slavery, and that, at best, it stifled women’s creativity and ambitions and drained all love, meaning and value from their lives.10 “Since marriage constitutes slavery for women,” feminist Sheila Cronin wrote, “It is clear that the women’s movement must concentrate on attacking this institution. Freedom for women cannot be won without the abolition of marriage.” 11 Further, “the institution of marriage `protects’ women in the same way that the institution of slavery was said to `protect’ blacks–that is, that the word `protection’ in this case is simply a euphemism for oppression.” 12 Germaine Greer, in her influential book, The Female Eunuch, declared: “If women are to effect a significant amelioration in their condition it seems obvious that they must refuse to marry.” 13 Kate Millett declared that the goal of feminism has to be “the complete destruction of traditional marriage and the nuclear family.”14 Ti-Grace Atkinson referred to married women as “hostages.” 15 Marriage, it was said, “remains thoroughly tainted by being a long-standing buttress for the patriarchal domination of women.” 16 Picketing the New York City Marriage License Bureau in September, 1969, a NOW splinter group under the leadership of Robin Morgan distributed pamphlets declaring: “All the discriminatory practices against women are patterned and rationalized by this slavery-like practice. We can’t destroy the inequities between men and women until we destroy marriage.”17 Ms. Morgan went on to become editor of Ms. Magazine. The New York Public Library lists her book, Sisterhood Is Powerful, in which the quoted statement appears, as one of the most influential books of the 20th century.18
Marriage has existed for the benefit of men; and has been a legally sanctioned method of control over women…. Male society has sold us the idea of marriage…. Now we know it is the institution that has failed us and we must work to destroy it. The end of the institution of marriage is a necessary condition for the liberation of women. Therefore it is important for us to encourage women to leave their husbands and not to live individually with men…. 19
Although they did not succeed in abolishing the institution of marriage completely, second-wave feminists did succeed in securing reforms that would make it possible for women to leave their marriages irrespective of whether they had been faithful to their husbands or not. Beginning in 1970 with California,20 states began eliminating the requirement of showing that one’s spouse was guilty of marital wrongdoing before a court could grant a party’s request for a divorce. At the same time, states also eliminated the requirement that the party seeking the divorce had to be innocent of any marital wrongdoing herself. In short, states began reforming their divorce laws to make marital fault completely irrelevant.
The women’s liberation movement and the sexual revolution were not the only sources of opposition to fault-based divorce. Social scientists criticized it for protracting children’s exposure to acrimony between their parents.21 Legal commentators, for their part, argued that fault-based divorce laws tainted the integrity of the justice system because they induced married people to commit perjury and falsify evidence in order to get around strict statutory obstacles to divorce.22
States varied with respect to the kinds of no-fault legislation they enacted. Many completely replaced fault-based grounds for divorce (adultery, cruelty, desertion, etc.) with no-fault grounds, such as “irreconcilable differences” and/or “irretrievable breakdown of the marriage.” Who was at fault for the inability to reconcile and the breakdown of the marriage was irrelevant.
Other states, such as New York, retained fault-based grounds, but added no-fault grounds to them. In these states, a person seeking a divorce could choose to pursue either a fault-based or a no-fault divorce.
Still other states effected no-fault divorce reform by making the fact of living separate and apart for a specified period of time (such as six months) grounds for divorce without any need for proof that the separation was justified due to a party’s misconduct.
By 1987, all 50 states had enacted some form of no-fault divorce legislation.23
Consideration of marital fault as a custody factor in the wake of no-fault divorce legislation
No-fault divorce legislation generally only removed the requirement of fault-finding from the process of deciding whether a divorce could be granted or not. This did not necessarily mean that fault could not be considered in connection with other issues. In fact, courts did continue to consider certain kinds of marital misconduct in connection with other issues. For example, a party’s commission of adultery might preclude an award of alimony to that spouse. Similarly, a father’s nonsupport of his wife or children could be considered in connection with the issue of custody, since judicial precedents had established that it was relevant to a father’s parental fitness.
Nevertheless, the removal of marital fault as the grounds for a divorce made the application of statutes directing courts to award custody to “the party not at fault for the divorce” problematic. Influenced by the women’s movement to enable women to leave their husbands and keep their children irrespective of the wife’s infidelity to her husband, and by the liberalization of sexual mores wrought by the sexual revolution, the legislative solution was to articulate a new set of factors, independent of marital fault, for deciding the custody of children in a divorce. Some of the factors they included were similar to ones that had been developed by the courts over the years. Others were new. Only a very small handful of states included any reference to moral character in their statutory “best interests” factors.
Although it does not appear that any court has completely ruled out the possibility of considering marital fault in connection with custody issues, it no longer occupies anything close to the central position it once did. Today, only a small handful of states authorize courts to consider a child’s moral development, or the potential impact of a parent’s marital misconduct on a child’s moral character. In most (but not all) states, evidence of marital misconduct is relevant only to the extent a party can demonstrate that it adversely affects a child’s physical, psychological or emotional development.
- See, e.g., Ga. Civ. Code § 2971 (Park, 1914) (superseded by Ga. Code § 19-3-3 (2012)) (specifying that the party not at fault is entitled to custody); Idaho Comp. Laws § 4623 (1919) (superseded by Idaho Code § 32-717 (2011)) (“to the innocent party”); Or. Laws § 513 (1920) (superseded by Or. Rev. Stat. § 107.137 (2011)) (“having due regard to the age and sex of the children, and unless otherwise manifestly improper, giving the preference to the party not in fault”); P.R. Civ. Code § 175 (1902) (superseded) (requiring courts to award custody to the mother unless she is at fault for the divorce.) ↩
- Hild v. Hild, 157 A.2d 442, 447-48 (Md. Ct. App. 1960). In this case, the court of appeals reversed an award of custody to an adulterous mother on the basis of the presumption against awards of custody to the guilty spouse. The court distinguished cases in which a parent evidences moral reform by terminating the affair, indicating that in such cases the presumption against an award of custody to the guilty party would be deemed rebutted. Id. at 447. Marriage to one’s paramour subsequent to a divorce from the spouse against whom one committed adultery was not necessarily sufficient to establish moral reform. Pangle v. Pangle, 106 A. 337 (Md. 1919); see also Carter v. Carter, 156 M. 500, 507 (1929) (denying custody to a spouse who had unjustifiably deserted the marriage and concealed the children from the innocent spouse.) ↩
- Ephphroditus Peck, The Law of Persons or Domestic Relations 261 (1913). ↩
- Walter C. Tiffany, Handbook on the Law of Persons and Domestic Relations 273-74 (2d ed., 1909). ↩
- Id. at 271, 274; see also Dinkel v. Dinkel, 322 So. 2d (Fla. 1975). ↩
- See, e.g., Hild v. Hild, 157 A.2d 42 (Md. 1960) (reversing trial court’s award of custody to an adulterous mother, and holding that the tender years doctrine will not overcome the presumption against an award of custody to an adulterous spouse if the mother, in addition to being adulterous, is also a danger to the child’s emotional health and development due to her interference with the other parent’s visitation rights and her disparagement of the other parent to the child.) ↩
- See Betty Friedan, The Feminine Mystique (1963). “A liberated woman,” Gloria Steinem wrote, “Is one who has sex before marriage and a job after.” Newsweek (March 28, 1960) ↩
- Friedan, supra note 7. ↩
- Steinem, supra note 8. Probably the most famous literary convergence of the women’s liberation movement with the sexual liberation movement was the 1973 book, Fear of Flying, by Erica Jong. Best known today for its glorification of what she called “the zipless fuck,” i.e., a casual, no-strings-attached sexual encounter (what today would be called a “hook-up”), the book sold over 20 million copies. ↩
- Friedan, supra note 7. ↩
- Sheila Cronan, in Radical Feminism - “Marriage” 219 (Koedt, Levine, and Rapone eds., 1973). ↩
- Id. at 214) ↩
- Germaine Greer, The Female Eunuch 317 (1971). ↩
- Kate Millett, Sexual Politics 35 (1970). ↩
- Alice Echols, Daring to Be Bad: Radical Feminism in America 1967-1975, p. 178 (1989). ↩
- Merran Toerien & Andrew Williams, “In Knots: Dilemmas of a Feminist Couple Contemplating Marriage,” 13 Feminism & Psychol. 434 (November 2003). ↩
- Sisterhood Is Powerful: An Anthology of Writings From the Women’s Liberation Movement 537 (Robin Morgan ed., 1970). ↩
- The New York Public Library’s Books of the Century (Elizabeth Diefendorf ed., 1996). ↩
- Nancy Lehmann and Helen Sullinger, Declaration of Feminism (1971) ↩
- There is some dispute about whether California was really the first state to enact no-fault divorce legislation. If “living separate and apart” for a specified period of time is included within the meaning of “no-fault” divorce, then several states, such as New York and Maryland, enacted no-fault divorce legislation before California did. And in 1968, Delaware enacted legislation authorizing divorces for couples that had experienced a two-year period of incompatibility. Denese Ashbaugh Vlosky & Pamela A. Monroe, “The Effective Dates of No-Fault Divorce Laws in the 50 States,” 51 Fam. Rel. 317-24 (Oct. 2002), at p. 322, Table 2. ↩
- Id. at 317. ↩
- M. Rheinstein, Marriage, divorce, stability and the law (1971); Thomas B. Marvell, “Divorce rates and the fault requirement,” 23 Law & Soc’y Rev. 543-567 (1989); S.E. Stanley & J.J. Berman, “Changing from fault to no-fault divorce: An interrupted time series analysis,” 7 J. Applied Soc. Psychol. 300-312 (1977). ↩
- Vlosky & Monroe, supra note 20 at 323, Table 3. ↩