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

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

The interview instrument included a combination of open-ended questions and forced-choice questionnaires. The interview began with preliminary information about the judges' court and general information about the volume of domestic relations cases they hear. I also asked judges a series of open-ended questions designed to elicit their views about child custody law and their experiences with child custody cases. While these questions covered a wide array of topics, such as joint custody, expert witnesses, and the use of social science evidence in courts, the questions relevant to this study concerned the child custody statute and the tender years doctrine. (See Appendix for segments of the interview guide that are relevant to this article.)

To examine how judges evaluate a variety of custody disputes, I also presented judges with four hypothetical custody cases. In this article, I analyze one of these hypothetical cases.5 This case involves custody of an infant girl whose parents both work:

A couple is divorcing. They have one child, an infant girl who is ten months old. The mother is not breast-feeding the infant any longer. Both parents work full-time jobs. When the parents are at work, the baby is in a child care center near their home.

I designed this hypothetical case to learn how judges evaluate a situation involving a child of tender years, with a mother who had recently ceased breast-feeding.

In addition to the open-ended questions, the interviews included a section of forced-choice questions, adopted from those frequently used in mail surveys. The first forced-choice questionnaire was an inventory of items related to gender role attitudes, adopted from the National Survey of Families and Households (Bumpass & Sweet 1997). The second forced-choice section asked judges to rate the relative importance of a variety of factors in child custody cases (Keilin & Bloom 1986; Reidy, Silver, & Carlson 1989).

I also asked judges about their professional and personal lives. In addition to gathering demographic information, I inquired about their career as a lawyer and judge, whether they have any children, their current marital status, and whether they have ever been divorced. Just over one quarter of the judges are female (28%). All but one of the judges I interviewed are white (96%). Most of them are currently married (80%) and have children (92%), although a sizable minority have been divorced (36%). The majority of judges (76%) were born in Indiana. Their average age is around fifty, and their average tenure as a judge is just over eleven years. More than half of the judges are members of the Republican Party (62%).

Custody Rulings

In addition to the interviews, I examined the custody rulings for a subsample of nine judges. These rulings (N = 121) were contested to a final hearing during the three years prior to my interviews, from 1995 to 1997.6 For some analyses, I differentiate between cases that involved at least one child of "tender years," defined as a child age six years or younger (N = 55), and those that involved children age seven years or older (N = 36). The remaining thirty cases did not provide information about the children's ages. The restriction to a subsample of nine judges was a function in part of data availability (i.e., although court files are technically public record, several counties had stored all domestic relations rulings between 1995 and 1997 because of space constraints or courthouse construction projects). Admittedly, this is a small sample of judges, and, in turn, a small sample of rulings, but this analysis does provide a glimpse into whether or not judges' views correspond with their decisions.