Have we reached the point where mothers are not immediately deemed the best candidates for child custody?

Almost, but not yet.

Until recently, it wasn’t just a cultural norm, but a legal principle that presumed during a child’s “tender” years (generally regarded as the age of four and under),

the mother should have custody of the child (See Wikipedia, Tender Years Doctrine). The tender years doctrine has since been ostensibly abrogated as constituting sexual discrimination; however, there are many judges who stubbornly apply the tender years doctrine with impunity.

So rather than being eradicated the tender years doctrine just went underground by assuming a disguise: the “primary caregiver” doctrine.

This was the idea that the parent who provided the majority of care to the child(ren) should continue to do so by being awarded sole or primary legal and/or physical custody of the child(ren). What’s perverse about primary caregiver is it’s artificially narrow definition of “primary” and “care”. “Care” is defined essentially as personal attention. Let’s face it, the reason the majority of people who provided most of the personal attention to children were stay at home mothers is because Dad was the only income source who made being a stay at home mother possible.

What many don’t know that is before the tender years and primary caregiver doctrines arose the law presumed that children were better off in the custody of their fathers in divorce. See what you did? As soon as you read that your first thought was, “Huh? Dad’s were presumed better for custody than Mom’s? Preposterous!” That just goes to show you how deep the roots of the tender years doctrine (and primary caregiver) have penetrated in our culture.

Now clearly there are situations in which joint equal physical custody cannot work. If the parents live too far apart, if work schedules just don’t allow a parent to be there enough of the time, etc. But if Dad is a fit and loving parent, whose work schedule can accommodate joint care giving, and he has moved just around the corner, so that he’s in the kids same neighborhood and school district, so that the kids can be near the same friends and environment whether they are living as his house or Mom’s house, why would you ever NOT award joint equal custody?

Fortunately, sexist legal policies against Dads are increasingly exposed and rejected, but that’s cold comfort for the Dad living in a county or assigned a judge who thinks he/she knows better.

Do you want to read something sad and upsetting? While I have negotiated settlements in which Mom and Dad agreed to joint, equal physical custody with Mom, I have yet to win a case in court in which Dad sought joint, equal physical custody with Mom. Even when Dad and Mom lived within walking distance of each other’s homes, Mom has, to date, always insisted she have at least a few more weeks with the kids each year than dad. The courts go along with it too.

Judges will look at me with a straight face and say, “Mr. Johnson, 6 days out of every 14 means having custody 43% of the time, so why complain about it not being 50%?” When I reply with, “If you advocate for 43% because it’s so very close to 50%, then your argument is premised on the presumption that 50% is better/fairer than 43%, so why would award Dad, who is no less a parent than Mom, less than 50% custody?” I continue, “Dad wants to be treated no worse and no better than Mom, the kids want both parents equally in their lives, and the only way to do that is award the parents 50/50 custody, so why deprive the children that way? Why treat one parent as second-class?” The judges literally can’t look me in the eye and then trail off by coming up with some pretext like, “Well, Mom has a stronger bond, she has historically provided more personal care . . .” With rare exception, all of these lame excuses depend upon A) looking backward to justify the way forward; and B) marginalizing Dad as a means of keeping him marginalized.

Courts routinely treat men primarily as financial support for kids who then “visit” their own kids. Courts justify unequal physical custody—even when Dad has a work schedule, residence, and proximity to Mom that easily accommodate the kids residing in the equal physical custody of both parents—because they believe (there is no proof) that 1) “kids just need to spend most of their time in one place” 2) “these kids need more time with their Mom more than with their Dad,” and/or 3) “We don’t know whether joint equal custody will work [as if experimenting with custody schedules is tantamount to scarring children for life], err on the side of caution, and just award primary custody to Mom.

Worst of all, courts can indulge in the self-fulfilling prophecy of, “We don’t have any evidence that joint equal custody would work, so therefore we can conclude it cannot work” when it’s the courts that refuse even to give joint equal custody a losing chance.

Utah Family Law, LC | | 801-466-9277

Tags: , , ,
Click to listen highlighted text!