Judging the Best Interests of the Child: Judges' Accounts of the Tender Years Doctrine

Law & Society Review, Dec 2004 by Artis, Julie E

With dramatic changes in family life over the last several decades, child custody law has shifted from a maternal preference to a more egalitarian standard, the best interests of the child. Despite this change in the law, scholars have debated whether gender continues to play a role in the resolution of custody disputes. Drawing on feminist legal scholarship and sociolegal research on judges, I assess the current debates over gender and custody by examining the accounts of judges who frequently adjudicate custody cases. I conduct indepth, face-to-face interviews with twenty-five trial court judges in Indiana and investigate judges' accounts about whether they continue to use the tender years doctrine in custody disputes, even though the custody statute is explicitly gender-neutral. Then, I assess several competing explanations of the variation across judges' accounts, including the judges' gender role attitudes, gender, age, and political party affiliation. In exploratory analyses, I also examine the contested custody rulings of a subset of nine judges to assess whether judges' accounts are congruent with their actual custody decisions. I discuss the implications of these findings in light of feminist legal scholarship as well as empirical research on child custody adjudication.

No issue is more subject to personal bias than a decision about which parent is "better." Should children be placed with an "open, empathetic" father or with a "stern but value-supporting" mother? The decision may hinge on the judge's memory of his or her own parents or on his or her distrust of an expert whose eyes are averted once too often. It is unlikely that the decision will be the kind of individualized justice that the system purports to deliver. (Justice Neely, West Virginia Supreme Court of Appeals, in David M. v. Margaret M. [1989])

Over the past few decades, the legal system has been the site of sweeping changes that purport to make men and women equal in the eyes of the law (Gelb & Palley 1987). Such changes are evident in federal and state laws regulating access to higher education, credit discrimination, and parental leave. In the arena of child custody law, state legislatures have adopted a seemingly genderneutral standard, the "best interests of the child." This new standard has replaced gender-specific laws that granted custody, particularly of young children, to the mother.

Scholars, lawyers, and activists, however, have questioned whether the legislation of this gender-neutral standard is actually interpreted in a gender-neutral manner. They claim that the interpretation of the best interests rule affords a systematic advantage to one gender, although they disagree over whether mothers or fathers are favored. Some scholars and advocacy groups, such as fathers' rights groups, assert that a maternal preference permeates the courts. They maintain that mothers are awarded custody more often and report that judges often consider mothers more central to the well-being of children than fathers (Leving 1997; Pearson & Ring 1983). Other scholars, some coming from a feminist framework, contend that the gender-neutral best interests standard has been detrimental to women. They stress that women have lost bargaining power in divorce cases, pointing to families in which fathers have threatened to take away custody so that mothers will accept lower alimony and property awards (Chesler 1987; Fineman 1995; Polikoff 1983). These scholars claim that fathers are more often awarded custody. This debate over who is wronged in custody adjudication is highly politicized, with advocacy groups and commentators drawing on limited data about custody awards and interpreting these data in different ways (Chambers 1984).

This politicized debate can be informed by an empirical examination of how judges interpret the current gender-neutral custody law. Given the current gender-neutral "best interests" standard, most judges may consciously avoid favoring mothers or fathers in custody disputes. However, some judges may continue to favor mothers, especially when they adjudicate a custody case involving an infant or young child. Until the late 1960s, courts automatically awarded mothers custody based on the "tender years doctrine"-the notion that mothers have superior, "natural" nurturing abilities and a biological connection to their infants (Mason 1994). Despite current gender-neutral custody laws, the idea that mothers are biologically connected to young children and infants (by breast-feeding, for example) may remain entrenched among some portion of the judiciary.

To assess judges' views of the custody adjudication process, I conducted in-depth interviews with judges, who related their experiences making child custody decisions, their views of parenting and divorce, and their assessment of current and past child custody policy. Drawing on these interviews, I examine judges' views of the tender years doctrine. Then, I assess several factors that might explain variation across judges' views of the tender years doctrine. Furthermore, in supplementary analyses of a subsample of nine judges, I also examine patterns of actual custody awards, with particular attention to cases involving children of tender years (children ages 6 and younger). By examining judges' views of the tender years doctrine, I evaluate whether judges evoke notions of gender difference or gender equality when they discuss contested custody disputes.