The Custody Wars

Mary Ann Mason 1999
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Introduction Children: The New Property

In the cloakroom of my daughter’s Montessori preschool a large chart was posted every week that listed every child’s name and who would pick that child up each evening. Many of these children were shuttling back and forth between two households. Every day a good portion of the cubbies were crammed with overstuffed backpacks or small suitcases, and on Fridays the backpacks and suitcases overflowed onto the floor.

With such complicated schedules, there were bound to be slipups. One afternoon I was delayed at work and raced to the school, convinced I would be the last parent to arrive; but one other child was still waiting. He sat tensely on the floor by the door, a large backpack in his lap. My daughter gathered her drawings and jacket and we started out the door. She waved at him and he waved back. He said in a small, worried voice, “Bye Eve, I don’t remember who I belong to tonight.”

It is not surprising that this child thought of himself as a belonging. Many children are exchanged like chattel between parents who insist on their right to them. Not that these parents don’t love their children; they love them more than anyone else.

For many adults the parent-child relationship has replaced marriage as their primary social and emotional connection. Children provide the link to neighbors and school activities that tie adults to the community. Without children many adults risk social and emotional isolation.

Perhaps because children are so important to adults, mothers and fathers tend to think of them as their right, as an entitlement. Child custody has become a right for which men and women fight. Unfortunately, this right has become an extension of the battlefield of gender politics.

Mothers and fathers believe that custody disputes are a personal matter, unique to them. They are not wholly correct. When adults negotiate the custody of children today it is not only an individual matter but also part of a greater contest. When men and women fight over the custody of children, they are engaging in gender wars that have occurred in the workplace, in the home, and in the bedroom over the past quarter century-and it is in this quarter century that the child’s needs have been eclipsed by the needs of their parents.

Mothers and fathers got divorced in previous generations, albeit in lesser numbers, but their children were not held hostage in the same way as they are today. For more than a century the “tender years” doctrine dictated that small children needed the nurture and stability of a primary parent, and that parent was most likely to be the mother. The child then was assigned a single primary residence and a single primary parent-nearly always the mother. While this rule undoubtedly caused some unfairness, it did focus on the child’s need for nurture and stability rather than on the parents’ rights to access. It also discouraged dispute, since society’s attitudes were aligned with the law’s judgment about what was best for children.

As a society; we no longer agree on what is good for children. We are more focused instead on the political rights of parents. In my California family law teaching and practice I have witnessed the laws governing custody disputes swing wildly over the past two (nearly three) decades. None of these radical swings in the law was prompted by new research findings about what is good for children. Each emerged from a skirmish in the larger arena of gender politics.

At first the law favored mothers as custodians for young children, presuming that children of “tender years” were best cared for by their mothers. This rule, in place for more than a century, was swept away largely as a consequence of the feminist drive for equal treatment in the 1970s. Men and women, they believed, must be treated equally in this and all other matters before the law. Many feminists feared that the motherhood connection would restrict their opportunities for equal treatment in the workplace. Asking for special consideration for motherhood could shut the door to the male professions even tighter.

The next round was won by men. In the eighties, fathers’ rights groups pushed for and won laws favoring joint physical custody, replacing the tradition of a primary custodian and a single residence for the child. The California legislature determined that courts should favor joint custody, even when the parents didn’t. Fathers went on to win child support concessions based on a concept of shared custody According to this view, more time spent with the child lessened support obligations.

The current round is being fought with some success by women. Women’s advocacy groups argue that a parent with a history of domestic violence should not have custodial rights. Fathers protest that this offers an easy way for mothers to make false claims and withhold access.

These issues are far more complex than this broad-brush view, and each will be examined in further detail throughout this book. Nonetheless, it has occurred to me, observing these shifts in the law over the years, that “mothering” has been systematically cut out of the law The abolition of a maternal preference has turned the law away from the care-taking and nurture of children to the rights of parents. Women’s rights and men’s rights have replaced children’s needs, as gender politics have spilled over into custody law

The tender years doctrine was never a mothers’ right; it was a child-centered rule. It forced the courts to move away from treating children as a property right of their fathers to focusing on the child’s need for nurture. In my history of child custody, From Father’s Property to Children’s Rights, I trace the evolution of this radical new notion of child nurture. The tender years rule reflected a dramatic transformation in social attitudes toward children in the nineteenth century. Children were no longer viewed primarily as economic assets, laborers under the absolute control of their fathers; they came to be seen as individuals with their own needs that commanded protection by the law. The tender years concept respected the developmental requirements of children, recognizing that very young children have special needs for nurture, normally satisfied by a mother. And in the first part of the twentieth century courts looked to the wishes and feelings of older children as a primary consideration in their decision.

Current laws do not focus on child nurture, nor do they acknowledge developmental stages. Children two years of age are treated the same as children of twelve. Most states simply offer a gender-neutral law requiring judges to apply an elusive “best interests of the child” standard, or they mandate a preference for joint custody, asking judges to divide the child’s life. The wishes of the child are not given critical hearing. Rarely are the children, the most important party, allowed to reveal their feelings. Even teenagers have a steadily shrinking voice.

The worth of children has shifted from that of an economic asset to an emotional asset, but one that is still extremely coveted. Once again children of every age are treated as a property right, this time an emotional property right, to be claimed by both mothers and fathers in their custody battles. In most instances the children have no rights and no voices.

Not only custody and child support following divorce have been affected by gender politics. Today nearly a third of our children are born outside of marriage. As a result of the swings in custody laws, fathers now can claim children simply by virtue of their blood tie. In a two-year-long Michigan dispute that commanded front page attention, two couples, the DeBoers and the Schmidts, fought bitterly over custody of a little girl, Jessica. In this case the issue was the biological fathers right to block an adoption agreed on by the mother. The father was not married to the mother at the time of Jessica’s birth, and had never seen the child. This became a fathers’ rights case, with little regard to the fact that twenty years earlier most unwed fathers would have had no claim at all to that child. Before the ternunation of the “mothering” standard an unwed father who had not raised the child would have had no right to seek custody. Now the law acknowledges the rights of fathers who have in no way participated in nurturing. Fathers’ rights have become defined as strictly biological rights, unrelated to actual parenting or even marriage.

Biologism has been newly and vigorously asserted in other contexts as well. Biological rights prevail over nurture in nearly all situations, regardless of who provides the actual parenting. Stepfathers or stepmothers, who may have raised a child for years, typically have no claim to custody or visitation if the marriage ends. About a fourth of all children will spend part of their life in a stepfamily, yet that parenting role is unrecognized by the courts. Stepparents have neither rights nor obligations toward their stepchildren under the law. Other family arrangements include lesbian partners who play a full parental role, often from birth, but are barred in most states from making a legal claim to custody In all these circumstances the act of nurturing, the “mothering” role, is mostly disregarded by the law.

The latest battle in the custody wars is being waged in the tangled thicket of medically assisted reproduction. The urgent desire to parent has created a rich industry of technological interventions that allow the infertile to circumvent each stage of the traditional procedures of insemination, conception, pregnancy, and childbirth. Such processes raise fundamental questions about the biological essence of motherhood and fatherhood. They also provoke practical concerns about rights over the products of each discrete stage in the cycle of reproduction: ova, semen, pre-embryo, embryo, fetus, and, finally, baby. Are these property rights or custody rights? The effects of the rejection of “mothering” are most evident in this arena in our treatment of surrogate mothers. There is ambivalence and confusion, but most lawmakers essentially believe that the nurturing acts of pregnancy and childbirth are little different from manufacturing a car. A baby, like a car, must be delivered to the buyer who contracted for its production.

Custody issues are not likely to become simpler. They will only grow in variety and complexity as technology advances and marriage retreats from its role as the central child-raising institution. Nearly half of children born today will be subject to a custody negotiation or dispute before they reach adulthood, often under the jurisdiction of a court. In most cases divorce is the triggering event, and it is the biological mothers and fathers (in the traditional sense) who are negotiating custody. Increasingly, however, as children are born and raised outside the confines of marriage, unwed fathers and non-biological parents (including stepparents, adopting parents, and grandparents) fight for the right to hold on to the children they are raising.

Can we find a better framework to deal with these disputes, in which children are not treated as property to be divided? I believe we must. We cannot ignore the needs of our children. Custody is not just someone else’s problem, it is a central concern for the majority of Americans. How and with whom children are raised determines much about our society’s future.

The end of the mothering standard has created a new battlefield, but returning to a maternal preference is no longer a viable solution. In some families the mother is no longer the principal nurturer of small children. Women have had to make hard choices; some have chosen to leave the primary mothering role to the father or another parental figure. More important, more and more children are raised outside the institution of marriage, and old custody rules do not fit new families.

It is time to completely rethink child custody and support. We need a new vision, a new vocabulary, and uniformity among our states, which now offer a dizzying patchwork of contradictory laws and procedures. Most custody disputes do not reach the courtroom. They are settled around kitchen tables, in lawyers’ offices, or in mediators’ conference rooms. Still, we depend on the state to tell us what is expected of us as parents-what the society believes is best for children, how the courts will decide if we do not. Laws influence how decisions are made, whether or not the conflicts are raised in court.

This book offers a new framework that focuses on the rights of children, not on those who claim them. Simply put, this framework is based on the following principles, inspired by the 1989 United Nations Convention on the Rights of the Child, children have the right to a nurturing environment in accordance with their developmental needs; the right to have their voices heard in accordance with their ages; the right to legal representation; and the right to economic and emotional support from their parents and from the state.

Fashioning these general principles into specific rules and procedures that apply to child custody is a challenge, but not an impossibility. We have a great deal of knowledge from social and behavioral science as well as our own experience about what works for children at different developmental stages. We know how to listen to children and how to provide legal representation for them; and we understand that children need support- including economic support-and what it takes to provide that.

This book will develop five simple ideas that offer the basis of a child-centered custody policy that could apply in almost all circumstances in which adults fight for custody:

  • Children’s needs are not one-size-fits-all. They change over time. Children of tender years should live with their primary parent. As children develop their needs should be reviewed.
  • Actual parenting should receive attention over biology.
  • Children have been silenced. Their wishes and feelings must be listened to. All children should have a voice, both in court and out; an adolescent’s voice should be the deciding voice.
  • Children have no place in which their voices are heard and their needs attended to. We must provide them a place.
  • Child support is not rent-a-child. Support must not be tied to visitation.

There are principles and there are practices, but first there are human beings whose lives are being torn apart. In this book I approach current disputes through the stories of those who live them. Many of these stories are found in court reports; some are from my own practice. The histories are personal, but they reflect the larger political landscape in which the rights of men and women are in contest. The court reports also reveal the complexity of these disputes; rarely can they be seen as black and white. Perhaps the most striking feature of the court cases is that children are rarely mentioned by name, and sometimes even their ages are omitted, which illustrates the absence of their wishes and feelings from the proceedings. The party with most at stake has no voice.

In the course of writing this book I often have thought of Eve’s young friend who couldn’t remember who he belonged to. That child, like my daughter, must be approaching adulthood. It is likely, in the light of statistical projections, that one or both of his parents have remarried, creating still more complex parenting relationships and even more parents. I do not know what became of him. Knowing how we deal with such situations in California, however, he probably continued to shuttle back and forth between households unless one parent moved away, which most likely would bring everyone back to the courtroom, where the biological parents would fight for their rights once again. The one thing I can be fairly certain of is that as a young child his wishes and feelings were given little consideration, and becoming an adolescent would not be considered a sufficient reason to review his living arrangements. No one would want to listen to him.