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

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

Only two studies to date have combined interviews with judges with an examination of their custody decisions and, like the studies discussed above, the conclusions are equivocal. Pearson and Ring (1983) conducted face-to-face interviews with seventeen judges in the metropolitan area of Denver and analyzed their actual custody decisions. They find that mother-only custody is the most common award in contested custody cases that judges decide. To explore this pattern more closely, they use their interviews with judges to explain this finding; most judges, especially older judges, express a belief in the tender years doctrine as a factor in custody decisions. By contrast, using an ethnographic approach, Girdner (1986) finds that custody adjudication has moved away from a gender-based ideology focusing on mothers' inherent, biological ability to care for children and has instead been replaced by an individual-based ideology.

I contribute to this line of research by conducting face-to-face, in-depth interviews with judges and by collecting judges' actual decisions in a subset of jurisdictions. This approach allows me to question judges extensively about all aspects of custody disputes and to examine judges' views about parenting, divorce, and the tender years doctrine. I focus primarily on how judges view the tender years doctrine-do they still continue to believe that young children belong with mothers? Then, in supplementary analyses, I compare these views to judges' rulings in order to discern how judges' accounts are consistent (or inconsistent) with their actual custody awards.

Explaining Judges' Views of the Tender Years Doctrine

Assuming that there is variation across judges' views about the tender years doctrine, it is important to identify potential explanations for this variation. Several factors may help explain differences among judges' views of the tender years doctrine, including the judges' gender role attitudes, gender, age, and political party affiliation.

Gender Role Attitudes

Research on the courts shows that judges' personal beliefs and ideological orientations affect their decisionmaking behavior (Baum 1997). However, much of this research has focused on the U.S. Supreme Court or on appellate courts, where attitudes are typically denned as "policy preferences" or the judges' liberal/conservative orientation. Here, I focus more narrowly on gender role attitudes, examining whether judges' reported gender role attitudes affect their views of the tender years doctrine. I expected that judges with more traditional ideas about gender roles would be more likely to say they continue to use the tender years doctrine when compared to judges with more liberal ideas about gender roles.

Gender of Judge

Unfortunately, none of the studies on judges and custody examines the influence of the gender of the judge. These studies do not include female judges (Lowery 1981; Feiner et al. 1985), do not specify the gender composition of judges in the sample (Pearson & Ring 1983; Stamps, Kunen, & Lawyer 1996), or do not differentiate between female and male judges in their analyses (Reidy, Silver, & Carlson 1989). Although women have made great gains in the legal profession (30% of all attorneys are women), they are underrepresented in the judiciary (Rhode 2001). As a result, perhaps no one has attempted to examine female judges and how they may handle custody cases in ways that are distinct from those of male judges.