The Mom always gets the kids in a custody battle!
If the courts took her kids and gave them to Dad, she must have been a terrible mother!
She got pregnant on purpose. She knows she’ll get the kids have get child support for 18 years!
Dads get screwed in Family Court!
If you are like me, you have probably heard one of the above statements, or something similar, for several years. Perhaps you have made similar statements yourself. They all seem to point to the same widely held belief:
The courts favor mothers over fathers in custody disputes.
But, is that true? Do the courts REALLY favor women over men? If so, this raises many other disturbing questions. Is the favoritism because of prejudices against men as parents or stereotypes against women as homemakers? Is it legal? Is it morally correct? Does it violate the 14th Amendment which guarantees equal protection regardless of gender? Do children suffer in the process by being placed with a less fit parent? Or maybe it’s true that women are generally better parents.
If you have read my blogs before, you are used to my response: I don’t know. It depends. But, it’s interesting to see what the law and our courts have really said.
The Doctrine Maternal Preference
Prior to 1977, the Louisiana legislature provided little guidance to our courts in making child custody decisions. At that time, Civil Code Article 157, which governed the original award of permanent child custody, provided in pertinent part that "the children shall be placed under the care of the party who shall have obtained the separation or divorce unless the judge shall, for the greater advantage of the children, order that some or all of them shall be entrusted to the care of the other party." Without legislative guidance, the courts developed several jurisprudential precepts to guide their decisions and give some consistency between different courts in different parts of our state. They are best pronounced in Fulco v. Fulco, (259 La. 1122, 254 So.2d 603 (1971)).
1. The best interest of the children principle. The paramount consideration in determining custody is always the welfare of the children;
2. The maternal preference rule. Generally, it is in the best interests of the children to grant custody to the mother, unless she is morally unfit or otherwise unsuitable;
3. The trial Judge’s discretion. The determination of the trial judge in child custody matters is entitled to great weight, and his discretion will not be disturbed on review in the absence of a clear showing of abuse.) Estes v. Estes, supra, and jurisprudence therein citedand jurisprudence therein cited.
With minimal research, I traced the Doctrine of Maternal Preference back to three 1952 Louisiana Supreme Court cases: White v. Broussard, 206 La. 25, 18 So.2d 641; Withrow v. Withrow, 212 La. 427, 31 So.2d 849; Kieffer v. Heriard, 221 La. 151, 58 So.2d 836 (La., 1952). The Doctrine of Maternal Preference was stated in various ways. However, the gist of it was as follows:
It is generally in the best interest of children – especially young children - to grant custody to the mother. In fact, the mother should not be denied custody unless she is morally unfit or otherwise unsuitable. It is only in exceptional cases that awarding custody of children to their fathers is in the best interest of the children.
The Court stated, “It is also well established that the paramount consideration in determining to whom the custody of a child should be given after the divorce is the welfare and the best interest of the child, and under this rule this court has consistently awarded the custody of minor children to the mother unless she has been found to be morally unfit or unless she is incapable of taking care of the children.”
I must point out that the Doctrine of Maternal Preference does not appear to have been the final and absolute word in making child custody decisions. However, it was a presumption in favor of the mother that could be overcome with evidence that the father could best serve the interests of the children. For those of us who deal with family law, we know that a presumption is a very powerful term that can be very difficult to overcome. Hence, I feel safe in saying that fathers faced a disadvantage and an uphill battle in obtaining custody of their children.
Best Interest of the Child Factors
In 1977, the Louisiana legislature passed Act No. 448 of 1977, which amended Civil Code article 157 to put an end to Doctrine of Maternal Preference and establish the Best Interest Principle as the only consideration in making child custody decisions. The new Civil Code article 157 read, in pertinent part, that “In all cases…permanent custody of the child or children shall be granted…in accordance with the best interest of the child or children ..." The legislative aim of this act seems clear--simply to codify the jurisprudential best interest principle and to reject statutorily the jurisprudential maternal preference presumption. (Bergeron v. Bergeron)
The Court in Bergeron noted that decisions after the 1977 amendment did not clearly reflect the legislative intent to get rid of the Doctrine of Maternal Preference. This may be part of the reason that the Louisiana legislature passed several subsequent acts addressing the issue, including Act No. 307 of 1982, which introduced what is now referred to as the Best Interest Principles used in child custody decisions. The current factors are:
(1) the love, affection, and other emotional ties between each party and the child;
(2) the capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child;
(3) the capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs;
(4) the length of time the child has lived in a stable, adequate environment and the desirability of maintaining continuity of that environment;
(5) the permanence, as a family unit, of the existing or proposed custodial home or homes;
(6) the moral fitness of each party, insofar as it affects the welfare of the child;
(7) the mental and physical health of each party;
(8) the home, school, and community history of the child;
(9) the reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;
(10) the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party;
(11) the distance between the respective residences of the parties; and
(12) the responsibility for the care and rearing of the child previously exercised by each party.
The courts retained the older precept that a trial judge’s discretion should be heavily respected. There should not be a mechanical application of the factors. The trial judge is free to give more weight to some factors over others, depending on the circumstances of the particular case before her.
Surely the point of this extensive legislative action was to create a level playing field and ensure child custody arrangements are based only the best interests of the children involved. The point was to kill maternal preference once and for all, right? So why is it that we still commonly refer to maternal advantages in custody decisions? Why is it that people who were not even born when the 1952 Louisiana Supreme Court established the Doctrine of Maternal Preference still speak of it as if it is alive and well?
Primary Caretaker Principle
I offer that although the Doctrine of Maternal Preference is dead and gone, a new principle has emerged that may make it just has hard for many fathers to obtain primary custody of their children over the mother. I refer to it as the primary caretaker principle.
Pay close attention to the Best Interest Factors – especially factor 12. Although the Court has discretion regarding the weight of each factor, Louisiana courts have considered prior responsibility for the caretaking and rearing of the child a “significant factor” in determining the custody arrangement that is in the best interest of the child. (See the Comments of Civil Code article 134 which provides the Best Interest Factors). To see the principle in action, consider the following cases:
· In Quinn v. Quinn, the Court awarded sole custody of the minor child to her primary caretaker even though more of the best interest factors weighed in favor of the other parent.
· In Nale v. Nale, the Court provided insight as to why the relationship between a child and her primary caretaker has such weighty influence. There, the Court stated the desire to continue minor children “in the care of the parent who, …, has provided the degree of continuous care and affection which creates such a close bond that it would be harmful to the children to alter that relationship.”
· The First Circuit signaled in Elliot v. Elliot that caution must be taken before reducing the time a minor child is accustomed to spending with her primary caregiver.
· In Martello v. Martello, the First Circuit reinforced the standard of a showing of detrimental impact on a child before interfering with the relationship between the child and her primary caretaker. There, the Court awarded the parents joint custody of their minor children, designating the mother as the domiciliary parent. Although the father had been the primary financial supporter of the children, the mother had always been their primary caretaker. The Court rejected the argument that the mother’s habitual lifestyle choices of partying, staying out late, and sneaking into the window were sufficient reasons to remove her as domiciliary parent. The Court reasoned that, despite the depravity of the alleged behavior, there was no showing of a detrimental impact on the child.
In short, the traditional lifestyles and roles many mothers and fathers play in providing for children may still be problematic for fathers who choose to challenge the mother for primary custody of their children. I admit that in my household, I am an attentive father and I provide for my family. However, I cannot begin to claim that I am their primary caregiver. My wife has always been light years ahead of me in caring for them when they are sick, ensuring schoolwork is done, bathing them, putting them to bed, getting them dressed for school, and kissing those bruised body parts and emotions. So if I foolishly challenged her for primary custody, I would come face to face with the primary custody principle.
THE BOTTOM LINE: It is true that our courts once openly gave preference to mothers in child custody battles. This was based on the presumption that children were more accustomed to their mothers as their primary caregivers. Although the law has changed, we have not changed with it. In many households, mothers are still the primary caregivers. While the courts are gender-neutral, they do not ignore the fact that children are generally better off in the hands of their primary caregivers. My opinion is that only those men who are equally or more involved in nurturing their children should expect the Best Interest Factors to weigh in their favors.