Copyright 1991 by Anne P. Mitchell
Years ago, at common law, custody of minor children automatically went to the father. The husband's word was law. He was master of his family, and along with the responsibility of being the head of the family came a "corresponding entitlement to the benefits of his children, i.e., their services and association." Ex Parte Devine, 398 So. 2nd 686 (1981). Children were, in effect, so much chattel, as the cows, the plow-ox, the family homestead, etc.
Many courts still held to this notion far into the 19th century. An Illinois case, for example, held fast to this rule even though by the time the case was decided (1889) many states had started to drift from this position. In Umlauf v. Umlauf the Supreme Court of Illinois says: "Unquestionably no other person can feel for a boy, or show to him the love and affection which he receives from his mother. But the rule is 'that the right of the father is superior to that of every other person, and can only be made to yield when it is manifestly inconsistent with the health and welfare of the child.' 3 Smith Lead. Cas. 375." Umlauf v. Umlauf, 21 N.E. 600 (1889)
In the early-to-middle 19th century this hard and fast rule began to be softened in order to consider the rights and feelings of the mother, leading to what was to become known as "the tender years doctrine". This doctrine suggests that custody of a child could be awarded to its mother if the child were of "tender years".
The tender years doctrine's application in the United States can be traced back as early as the year 1830, to the Maryland decision Helms v. Franciscus. The Helms decision opined:
"The father is the rightful and legal guardian of all his infant children; and in general, no court can take from him the custody and control of them, thrown upon him by the law, not for his gratification, but on account of his duties, and place them against his will in the hands even of his wife....Yet even a court of common law will not go so far as to hold nature in contempt, and snatch helpless, puling [sic] infancy from the bosom of an affectionate mother, and place it in the coarse hands of the father. The mother is the softest and safest nurse of infancy, and with her it will be left in opposition to this general right of the father." Helms v. Franciscus, 2 Bland Ch.(Md.) 544 (1830).
This doctrine appears to mark the beginning of a maternal bias in the courts which has persisted to this day.
It is of interest to note that what started out as a move to recognize the rights of the mother became cast and crystallized as something which must be done in the best interest of the child. Lines such as "The mother is the softest and safest nurse of infancy" (Helms, supra) cast this maternal preference in a most humanitarian light: this is for the good and nurturing of the child. Thus for the child's sake he must be left in his mother's custody.
In Watts v. Watts, a New York case which castigates the tender years doctrine, the court describes it thusly: "The 'tender years presumption' is actually a blanket judicial finding of fact, a statement by a court that, until proven otherwise by the weight of substantial evidence, mothers are always better suited to care for young children than fathers." Watts v. Watts, 350 N.Y.S.2d 285 (1973).
While some states eventually abandoned the tender years doctrine, it was alive in one form or another in 30 states as recently as 10 years ago. Ex Parte Devine, Footnotes 3-6.
In Ex Parte Devine the Alabama Supreme Court addressed the issue of whether such a maternally-slanted bias could withstand a 14th Amendment challenge, and found that it could not. The court held "...we conclude that the tender years presumption represents an unconstitutional gender-based classification which discriminates between fathers and mothers in child custody proceedings solely on the basis of sex." Ex Parte Devine, 398 So.2d 686, 688.
Despite some courts' recognition that the tender years doctrine, or other maternal biases, are inherently unfair, the vast majority of disputed custody cases are resolved with custody going to the mother. The court in Watts v. Watts cites "The Right of Children in Modern American Family Law" by Drinan, saying "[a]lthough in theory, a father has an equal right with the mother to the custody of his children, in well over ninety percent of the cases adjudicated, the mother is awarded custody. Watts v. Watts, 350 N.Y.S.2d 285, 286.
Even in courts which have found the tender years doctrine to be repugnant, there is still a judicial bias toward giving custody to the mother. Indeed, some courts have explicitly stated that the rights and interests of a mother and father must be considered equally under the 14th Amendment, and have then gone on to hold, nevertheless, that all other things being equal, custody should go to the mother.
Unfortunately, it is quite difficult to track current trends in judicial custody-dispute resolution because very few custody cases make it to the appellate level. Thus one would have to procure access to the trial court records, and compile the information on a jurisdiction-by-jurisdiction basis. There is no reason, however, to disbelieve Drinan's estimate that over 90% of all adjudicated custody cases are decided in favor of the mother.
The maternal bias in this system is not limited to the men in the robes, either. Mediators, social workers, and custody-evaluating psychologists (often appointed by either the court or the Department of Social Services) for the most part all seem to operate on the basic premise that children, especially young ones, belong with their mother. A recommendation from one of these family "professionals" is often enough to influence a court to award custody to the recommended parent.
The laws may require equal treatment, but "best suited to have custody of the child" is a subjective call, and the caller remains an individual. As long as so many individuals, both in the family law field, and in society in general, believe that children belong with their mothers in preference to their fathers, men will not be given a fair shake, no matter what the laws say to the contrary.
Next month, Maternal bias in child support matters
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