Child Custody Awards

TO:

FROM: Matt Ranelli, Research Attorney

RE: Child Custody Awards

You asked for statistics regarding the number of cases in which physical custody is awarded to the father and the number of cases in which it is awarded to the mother. You have also asked why the courts have traditionally preferred mothers when awarding custody of children.

The statistics that you requested are not readily available. We are still awaiting a response from several potential sources including the National Council of State Legislatures and the Department of Public Health and Addiction Services.

Courts have traditionally favored granting custody of minor children to mothers as a result of the "tender years doctrine." The doctrine originated around 1800 and states that custody of children of tender years should be awarded to the mother unless she is shown to be unfit. Recently the doctrine's popularity has declined and most states have replaced it with the best interests standard. The best interest standard requires the court to exercise its judgment to decide what is best for the child's welfare. Some state courts have ruled that the doctrine violates a father's federal equal protection rights. Connecticut does not follow the doctrine, it follow the best interest standard.

Courts in the United States have traditionally favored mothers when awarding custody of children in divorce cases. Courts have preferred mothers as a result of what is commonly called "the tender years doctrine." The tender years doctrine states that courts should award custody of children of tender years to the mother unless she is found to be unfit. The age of "children of tender years" is not clear, but generally it includes children up to adolescence. The doctrine is a matter of common law, and some states have included it in their statutes.

The tender years doctrine originated in the 19th century English courts of chancery to mitigate the harshness of the principle at the time that the father had an almost absolute right to custody of his children. In the United States, the doctrine began appearing in the mid-19th century. The doctrine expressed the Victorian sentiment that children were best cared for by their mothers. The most common justifications offered for the maternal preference were (1) the belief that the mother was almost always the child's primary care-giver, and (2) the belief that, as a matter of nature, mothers were inherently suited "to care for and nurture young children" (Ex Parte Devine, 398 So.2d 686 (Ala. 1981). Currently the doctrine remains in the statutes in many states, but has been replaced by the "best interest of the child" standard in others, including Connecticut (CGS § 46b-56).

The tender years doctrine has many variations, but it is never an absolute right to custody for the mother. The doctrine is a presumption in favor of custody for the mother. The presumption can be overcome by a showing that the mother is not fit, or in many jurisdiction's that the mother was free of "marital fault".

Three factors contribute to the current decline of the maternal preference in child custody cases: (1) changes in family law, (2) changes in attitudes, (3) constitutional concerns raised by a gender-based preference. Despite the decline in popularity of the doctrine, there are many who still support and defend it. Ramsay Klaff, a commentator on Family Law issues, maintains that the tender years doctrine protects the child better than the ad hoc approach of the best interest test. Klaff claims that the tender years doctrine "deals equitably with the conflict between parental interests by preserving role choices made by parents during their marriage" (see attached).

The current trend in family law is to de-emphasize the role of gender and the element of fault in determining the rights and responsibilities of parents. The tender years doctrine requires fathers to attempt to prove that the mother was unfit. This requirement encourages cases that focus on attacks of character and leaves little opportunity for mediated agreements and joint custody requests. The current trend is to emphasize the best interests of the child. Connecticut recognizes this trend by presuming that joint custody is in the best interest of the child so long as both parents agree to an award of joint custody (CGS § 46b-56a(b)).

The tender years doctrine was based on two important premises which are both under reconsideration: (1) that the mother is the primary care-giver and does not work outside the home; and (2) that the mother was inherently a better care-giver than the father. It is evident that the number of families in which both parents work outside the home has increased dramatically in recent years, making the presumption that the mother is the primary care-giver less clear then it once was. Likewise, the belief that a mother's care is inherently better than a father's care does not clearly reflect contemporary views regarding male and female roles.

Any law or statute that contains a gender-based distinction raise concerns regarding the equal protection clause of the 14th Amendment. The 14th Amendment states that "No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws." The courts have interpreted this to mean that law must not treat similarly situated people differently based on their membership in a certain class of people. The most common classifications include race, alienage, and gender. The courts have developed different tests or levels of scrutiny to apply depending on what type of classification is alleged. For gender-based classifications, the court applies "intermediate scrutiny" or the "middle-tier standard"; this standard states that a gender-based classification is unconstitutional unless it is serves an important government objective and it is substantially related to achievement of that objective" (Craig v. Boran, 429 U.S. 190, 197(1976)).

The Supreme Court has not addressed the constitutional validity of the tender years doctrine itself or its use as a tiebreaker under the best-interests test. It is unclear how the court would rule on the issue. States have survived intermediate scrutiny in other areas, but to survive scrutiny on the tender years doctrine they must be able to demonstrate an important state objective and a substantial relationship between the classification and that objective. A state could argue that the important state objective of the tender years doctrine is protecting the interests of the child, but then it would have to demonstrate that the maternal presumption is substantially related to protecting those interests.

Several state courts have addressed the constitutionality of the tender years doctrine under the 14th Amendment and have concluded that it violated the father's right to equal protection of the laws. (See: State ex rel. Watts v. Watts, 350 N.Y.S.2d 285 (1973); Ex Parte Devine, 398 So.2d 686(Ala. 1981); Gordon v. Gordon, 577 P.2d 1271(Okla. 1978); Pursey v. Pursey, 728 P.2d 117(Utah 1986).

Although Connecticut did follow a variation of the doctrine at one time, it has since been replaced by the best interest standard. Since at least 1885, Connecticut has awarded custody according to the best interest standard with not expressed preference based on gender (CGS § 46-2811 (1885)).

Current Connecticut statutes express two presumptions regarding the best interests of a child, neither of which is based on gender. First, a court can presume that joint custody is in the best interests of a child, if the parents have agreed to an award of joint custody (CGS § 46b-56a). Second, courts can presume that it is in the best interests of a child to be in the custody of his or her parent, over a non-parent (CGS § 46b-56b). Both presumptions are rebuttable.