Child Custody

Much debate about CHILD CUSTODY has focused upon the criteria that the courts use in awarding permanent physical custody in cases where two biological parents disagree. Noncustodial parents of both genders have long charged that judges' decision making is ARBITRARY and that it does not focus on the child. In response to this criticism, many states have adopted a standard that places primary emphasis on the best interests of the child. The challenge for courts since the 1990s has been to interpret the standard objectively in the absence of meaningful guidelines.

Policies of the past offer little guidance. Before the late 1800s, fathers had sole rights to custody, because it was closely tied to inheritance and PROPERTY LAW. Mothers had no such rights. Beginning in the nineteenth century, courts began to award custody of young boys and of girls of all ages solely to mothers on the presumption that mothers are inherently better caretakers of young children.

Until 1970, most states encouraged or allowed this maternal preference, also called the TENDER YEARS DOCTRINE, and mothers almost always received custody. Eventually, many state courts found this preference to be unconstitutional, and gender-neutral custody statutes had replaced maternal-preference standards in 45 states by 1990. A catalyst for this change was Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (197]), a noncustody case in which the U.S. Supreme Court ruled that the Equal Protection Clause of the Fourteenth Amendment prevents courts from basing opinions on generalizations about either gender.

A 1994 AMERICAN BAR ASSOCIATION study of divorces in Utah showed that after maternal preference in divorce cases was declared unconstitutional in that state in 1986, the number of mothers who received sole custody decreased, the number of joint legal custody awards increased, and the number of specific-visitation schedules increased. The researchers concluded that although the proportion of fathers who received sole custody did not necessarily go up, the net result was more involvement by fathers after divorce.

No straightforward criterion has replaced the simple—although unconstitutional—presumption that children belong with one gender or the other. The decisions that result are often inconsistent, and many participants view them as arbitrary. Ultimately, the judge decides the child's future, and few guidelines are provided to ensure that the decision is objective.

Nevertheless, courts have instituted some mechanisms to determine a child's best interests. GUARDIANS AD LITEM (caretakers "for the lawsuit") or friends are sometimes appointed to represent the child's interests and to advocate in court on the child's behalf. Custody evaluations may be ordered, in which court-services personnel visit each parent's home and evaluate each parent's plan for caring for the child. The fact that one parent has been the child's primary caretaker is often considered but is not enough to guarantee a custody award.