The History of Custody Law by Tom James

The History of Custody Law by Tom James

Author:Tom James
Language: eng
Format: epub
Tags: children, history, child custody, legal history, custody, family law, history of law, custody law, custody of children, history of custody law, maternal preference, tender years


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Chapter 29. The Primary Caretaker Standard

At the beginning of the twentieth century, the division of labor in America was very starkly defined along gender lines: men worked outside the home; women stayed at home and raised children. Only 6% of married women worked outside the home — and then usually only because their husbands were unemployed. Employment outside the home spiked during World War II, when many men entered into military or alternative service, and then declined sharply, dropping to 12% by 1950.[642]

In the 1950's and 1960's, it was considered the norm for a woman either to become a housewife upon getting married, or to quit working and become a stay-at-home mother upon having a baby, if she was able to do so (i.e., if her husband had adequate financial means to support the family himself, or if she was independently wealthy.) Unmarried women, meanwhile, had sole custody of their children by law, and in severl states unwed fathers were not even defined in the law as fathers. The result was that mothers almost always were the primary caretakers of children. Prohibited from overtly deciding custody on the basis of sex, judges used this information to fashion a rule of decision that would seem gender-neutral on its face, but that would, in practice, continue to favor mothers: the primary caretaker standard. [643]

The primary caretaker standard was simply a presumption that a child's best interests are served by being placed in the sole custody of the person who historically has been the child's primary caretaker. Buttressed by the recent publication of Beyond the Best Interests of the Child,[512] a book advocating placement of children in the sole custody of the parent with whom they have formed the closest psychological attachment (as a result of bonding during a parent's performance of caretaking functions), several courts simply replaced the maternal preference with a preference or presumption in favor of a child's primary caretaker. [513]

The problem with the primary caretaker presumption, from a feminist point of view, was that it did not work to the advantage of working women. This became a significant concern during the last quarter of the century, when the percentage of married women with children pursuing employment outside the home sharply increased. Less than one in four married women with children worked outside the home in the 1960's. By 1980, nearly half did; and by the end of the century, a majority did. Feminists therefore complained that the rule penalized working women. [514] (That it had always disadvantaged men in exactly the same way, and for exactly the same reason, apparently was not thought to have been of any great consequence.) Accordingly, most states that had adopted the primary caretaker presumption quickly scrapped it.

Today, the question as to which parent has been a child's primary caretaker is just one of several factors a court may take into consideration when deciding what kind of custody arrangement is in the child's best interests.



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