Wednesday, May 1, 2013

The Maternal Preference in Child Custody Cases: Harm to Women and Children

The maternal preference in child custody proceedings that evolved from the early nineteenth century[en1] fails to account for the changes in workplace gender dynamics and has led to a double standard contrary to the interest of woman and children of divorce. Concurrent with the Women Liberation Movement was a rise in the rate of divorce filings[en2] as women sought to free themselves from a perceived oppressive social structure.[en3] Based upon the tender years doctrine[en4] mothers were overwhelmingly awarded custody of the children while fathers visited with them on the weekends.[en5] This maternal preference lasted well into the 1990's until a shift in professional opinion and activism by fathers' rights groups began to manifest itself in application of 1970's gender neutral laws.[en6] This change in application of the law was brought about by a compelling proposition that the maternal preference was harmful to children[en7] and violated fathers due process and equal protection rights.[en8] While conflicting sides argued over the harms to children by a maternal preference juxtaposed to fathers' rights as a vehicle to further abuse and control mothers[en9] there was no discussion of the potential harms to mothers from the view of women liberation coupled with the maternal preference.

The idea that the care of children fall under the purview of mothers is well established in religion[en10], culture[en11], and political ideology. In fact, Hitler described the woman's world as “her husband, her family, her children, and her home.”[emphasis added][en12] He went on to say that women were not inferior to men but that nature provided men and women with different duties. That women maintained and supported a smaller world, based around the home, for which the man relied upon to stand and perform in the larger world. He proclaimed, “Providence has entrusted the woman the cares of the world which is her very own, and only on the basis of this smaller world can the man's world be formed and built up. The two worlds are not antagonistic. They compliment each other, they belong together just as man and woman belong together.”[en13]

The Catholic Church proscribes the role of a mother as to train the children and “pay particular attention to their domestic concerns“ while staying within the home unless needs and the consent of her husband allow her to go elsewhere.[en14] Not inconsistent with Hitler's views is the role of women in Jewish culture where Shalom Bayit proscribes that women are expected to maintain the domicile and hold the family together – maintaining peace in the home.[en15] Hitler placed children in the Providence of woman in a near ownership role saying, “Every child a woman brings into the world is a battle, a battle waged for the existence of her people.”[en16]

As recently as the 19th century children were considered the property of men. By law a man was responsible to provide for the care and support of his wife and the children. The Indiana Supreme Court ruled that it was the “duty of a father to educate and support his children”.[en17]

Laws and courts in the US and parts of industrialized Europe began to hold that mothers had a biological right to custody of their children and that industrialization had placed fathers out of the home and women in the home as caretakers. By the 1920s, the maternal preference in custody determinations became rooted in law and the mindset of society as a whole.[en18] Fathers only gained rights upon a showing of supporting their children.[en19] In Indiana the law specifically negated the maternal preference by statute[en20] but in many aspects maternal rights still supersede those of fathers. Judicial officers are still granted wide discretion in making intuitive child custody decisions[en21] but in only about 17% of cases are fathers considered the custodial parent[en22] which has shown little change since the mid-1990's. Toward the end of the twentieth century a marked shift in custody rulings and agreements resulted in many more children being with fathers on an equal or greater amount of time.[en23] This has been more of a result in a change of attitude about the rights of fathers and the needs of children than it has been about law. Even though, as noted, the gender roles in the workplace have become fluid, in reality there still exist a maternal preference not consistent with the workplace roles that brought it about.

The maternal preference which views the best interest of children as best being served by placement with their mothers is contrary to the findings that sole custody with the mother is the most dangerous for children.[en24] The women liberation movement and subsequent changes in laws, policies and attitudes has resulted in women enjoying roles that, as Hitler said, were under the Providence of men. Simultaneously they are still entrusted and expected to fulfill the obligations and responsibilities of motherhood. Judges I have spoken with now seem much less hesitant to grant equal custody and parenting time rights to fathers as those in the past, but as those in the past they still seem reticent to expect that fathers can fully manage the same obligations and responsibilities of child rearing as mothers. I won't cite any specific example here as there is often an explicit or implicit confidentiality in my conversations with judicial officers. The maternal preference as it still exists may be harming children and depriving mothers of parenting time or custody rights to which they may otherwise be entitled.

To clarify, I provide this explanation of a maternal preference bias based upon my conversations with those judicial officers. One female judge bluntly told me that if women can't manage their jobs and take care of their children properly then the father can have custody [parenting time] of them. She went on to, correctly I believe, denounce women who seek sole custody as retribution saying that if they want to have sole custody then they sure better be able to do everything for that child. Otherwise, she indicated, the father is likely to get the child in a Shared Parenting arrangement. Yet when fathers have difficulty managing to perform all care taking duties concurrent with employment obligations these judges try to fashion plans that shift responsibility, but not time, to the mother or they seek to find resources for the fathers. To me the message is clear; mothers are perceived as being more capable of balancing employment and family obligations than men which is a resounding endorsement of their capacities. But it comes at a cost. When mothers don't manage fully they will have their responsibility of the children shifted to the fathers – men who may be no more be capable than women.

Thus, no deference has been afforded to the dual responsibilities of mothers that is now a reality of our modern culture. Concurrently though fathers are granted latitude in their child rearing misgivings that appears to be based upon the difficulties in adapting to their new roles. What was then our familial practice and rooted in scripture[en25] was articulated in a speech by Hitler. Women's liberation sought to redefine the roles of parents and judicial officers appear to express a bias in custody rulings that says “You asked for this responsibility and now you are going to be held to a higher standard for doing so.”

Father's rights activists have sought to extinguish the maternal preference doctrine from law and thought. They have been only partially successful and faced resistance from the gender feminists who seek the elimination of the family and fathers from the lives of children. The maternal preference still exist however in the minds of many, particularly the gender feminist and those women unduly influenced by their rhetoric. From the anthropological basis a maternal preference is unlikely to change soon. I have heard many mothers rail against others whom they perceive as not adequately providing for the child's best interest and then express a preference for placement with the father – one who they acknowledge may provide no better care than the mother – based upon an emotional response to motherhood. Similarly, while the stigma of adoption had been considered an archaic attitude, that did not alter the emotional base for it.[en26] While the maternal preference may biologically or culturally hold for generations to come it must be abandoned in application of law and the internal biases of judicial officers for the good of the children. Feminists across the range – political to liberating -- would be well served to embrace this concept.

The gender battles over child custody don't appear to be waning as the various advocacy groups continue to influence custody legislation and practice, particularly feminists and fathers’ rights groups, which is likely to continue for some time.[en27] Yet, many have little or no credibility. Many feminist group are illegitimate because they refuse to acknowledge real gender neutrality such as in Domestic Violence or employment. Domestic Violence is committed by both genders but while men recently reported more physical acts of violence against them than did women[en28] advocating for laws to only protect women[en29] will never solve the problem. Outrageous gender based claims have been made about earnings. I have contacted numerous employers and asked about wages and then what is the rate for women. In 100% of the cases employers pay the same rate for the same contribution regardless of gender. Likewise, some fathers' rights groups are no better in advocating for equal parenting time following divorce while ignoring parental roles during marriage or the divorce. One study found that children whose parents shared care taking responsibility during the marriage offered different levels of emotional support following divorce[en30] – mothers being more emotionally connected – which is critical to the child's adjustment.

Women are capable and intelligent managers, CEO's, administrators and workers across a wide swath of disciplines. They are also adept at balancing family life and parenting responsibilities with their professional life. But not every woman is Superwoman, and to expect them to be so is to place an undue burden and stress upon them reflective of a double-standard that does not properly acknowledge the frailties and deficiencies that we all have. To embrace the father who admits to difficulties balancing work and parenting responsibilities as a positive action attributed to good parental character while chastising the mother for the same is not only unacceptable gender inequity but may not serve the best interest of the child.


1] See 2 and 3 Victoria, 1839. The British Act of 1839 amended the law relating to the custody of infants.
2] 1960: 22%, 1970: 33%, 1975: 48%, 1980: 52%, 1985: 50%. source: 2011 U.S. Census Bureau, Statistical Abstract of the United States: Table 78
3] Napikoski, Linda. “Women's Liberation Movement: Feminism Glossary Definition” found at
4] Oberlin M.S., Loriann Hoff “Surviving Separation and Divorce”, 2nd Ed., 2005. p123.
5]Matthews, Mark D. “Curing the 'Every-Other-Weekend Syndrome': Why Visitation Should Be Considered Separate and Apart from Custody” William & Mary Journal of Women and the Law, Vol. 5, Iss. 2, Art 6.
6] The Uniform Marriage and Divorce Act, 1970
7] Kruk, Edward M.S.W., Ph.D. “Child Custody, Access And Parental Responsibility - The Search For A Just And Equitable Standard” The University Of British Columbia. December, 2008
8] Devine v. Devine 398 So. 2d 686 (Alabama 1981), which held that maternal preference laws were a form of sex discrimination and violated fathers’ equal protection rights under the Fourteenth Amendment.
9] American Psychological Association. Violence and the Family: Report of the American Psychological Association Presidential Task Force on Violence and the Family. Washington, DC. 1996. This report is no longer available from the American Psychological Association. The APA removed the report in 2006 because, according to the APA representative, it is a “very old document” and “several statements in the report need to have a better research analysis.” Communication with Julia Silva, Director, APA Adults and Children Working Together Against Violence Office, January 31, 2008.
10] Nair, Sanjay “Feminism and religion” Found at
11] Leibman, Nina “Living Room Lectures: The Fifties Family in Film and Television”
12] Hitler, Adolf, speech to the National Socialist Women's section, 08 September 1934.
13] ibid
14] To train up their children in the practice of virtue, and to pay particular attention to their domestic concerns, should also be especial objects of their attention. The wife should love her home and should not spend her time elsewhere, unless duty requires this and she has her husband's consent. Source: Catechism of the Council of Trent, Part II
15] Jewish Coalition Against Domestic Violence. Obtained from
16] Hitler, Adolf, speech to the National Socialist Women's section, 08 September 1934.
17] Ind. S Ct (1857) find case
18] Roth, A. The tender years presumption in child custody disputes. Journal of Family Law (1976-77) 15:423-61.
19] See Casey, 505 U.S. at 853; Lehr, 463 U.S. at 260 n.16 ("The mother carries and bears the child, and in this sense her parental relationship is clear.") (quoting Caban, 441 U.S. at 397); Smith v. Organization of Foster Families, 431 U.S. 816, 862-63 (1977); Mary L. Shanley, Unwed Fathers' Rights, Adoption, and Sex Equality: Gender-Neutrality and the Perpetuation of Patriarchy, 95 COLUM. L. REV. 60, 81-85 (1995)
20] The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. See IC § 31-17-2-8
21] Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011) “Appellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time. Thus enabled to access credibility and character through both factual testimony and intuitive discernment, our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.”
22] The majority of custodial parents were mothers (82.2 percent), and about 1 in 6 (17.8 percent) were fathers, proportions which were not statistically different from 1994. Source: Custodial Mothers and Fathers and Their Child Support: 2009. December 2011. Found at
23] Kuhn, Richard et al, “Child Custody Policies and Divorce Rates in the United States” 1997
24] “Study: Child Abuse by Moms in Army Families Rises When Fathers Deployed”31-07-2007. Found at,2933,291602,00.html
25] Titus 2:3 Older women likewise are to be reverent in behavior, not slanderers or slaves to much wine. They are to teach what is good, 4 and so train the young women to love their husbands and children.
26] Charnley, Jean “The Art of Child Placement” University of Minnesota Press, 1955. p108
27] Kelly, Joan B. “The Determination of Child Custody” Children and Divorce Vol. 4, No. 1; Spring 1994
28] 12 Month Prevalence of Physical Violence by an Intimate Partner in 2010 against; Women 4,322,00; Men 5,066,000 source: Tables 4.7 and 4.8, “The National Intimate Partner and Sexual Violence Survey: 2010 Summary Report” National Center for Injury Prevention and Control of the Centers for Disease Control and Prevention.
29] Violence Against Women Act (VAWA), Title IV of the Violent Crime Control and Law Enforcement Act of 1994 (P.L. 103-322), provides for Law Enforcement and Prosecution Grants to states under Chapter 2 of the Safe Streets Act “to assist States, Indian tribal governments, and units of local government to develop and strengthen effective law enforcement and prosecution strategies to combat violent crimes against women, and to develop and strengthen victim services in cases involving violent crimes against women.”
30] Wallerstein, Judith S and Kelly, Joan B. Surviving the Breakup; Basic Books, 1996

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