Evolution of Child Custody Laws in the U.S.

The “tender years” doctrine or the “maternal preference” in child custody cases may soon be a thing of the past in the United States. In Florida, for example, a new law that is set to take effect in October 2008 expressly disallows any gender preference in the determination of child custody.

Historically, when spouses parted ways in the U.S. the archaic practice was to award custody of the common children to the father in the concept of property. Years after that, when most mothers took on the traditional role of housewife and caretaker of the children, the laws started to favor the mothers in what is now known as the “tender years” doctrine. This doctrine is also known as a maternal preference in child custody disputes because a child usually under primary school age is generally allowed to live with the mother.

The Family Code of the Philippines contains a similar preference for children below seven (7) years of age. Exceptions to the rule may be invoked by the father but he who alleges has the burden of proof to show that the mother is unfit to take care of the child.

In recent years, many states have decided to change their laws by eliminating the maternal preference in custody cases. In its place is the more fluid (to my mind) doctrine called “best interests of the child”. It is a legal animal that reminds me so much of “psychological incapacity” because of its lack of a clear and precise statutory definition. In Australia and in some states in the U.S., family law provisions merely provide a list of factors that a judge may consider in the determination of custody. These factors seem to level the field in the custody battle between both father and mother, perhaps with reason.

  • The emergence of the involved father. While the housewife has evolved into a working mother, the paternal breadwinner has eventually been replaced by the “Denim Dad.” A Denim Dad is more likely to spend time at home with the kids and can easily be spotted wearing worn out jeans in lieu of the traditional white shirt and tie. More and more dads are seen at PTA meetings and school functions, while the moms are busy elsewhere. Fathers are no longer embarrassed to ask for parenting advice and parenting counselors have devoted substantial book paper on parenting guides.
  • Work equality is taking its toll on mothers. Divorced mothers know this: A re-singled woman has to work in order to meet her child’s and her own needs. Finding a right balance between work and motherhood is extremely difficult if one does it on her own. A mother can be a good career woman or a good caretaker, hardly both.
  • The rising statistics of maternal unfitness. It would have been easier for a mother to maintain her nurturing status if she had been faultless. While current statistics still show that a mother is granted child custody 80% of the time in the U.S., the other 20% who fail to keep their children with them are usually found unfit due to drug use, harmful behavior, sexual misconduct and of late, parental alienation syndrome.

Recent developments in family law and jurisprudence serve as a wake-up call to mothers. Unfortunate examples like Britney Spears may have spurred those changes in the law. Nevertheless, staunch advocates of fathers’ rights still feel that the battle is one-sided in favor of the mother. That’s about to change. Without the maternal preference rule written in the law, some mothers may one day find themselves complaining the way these divorce dads do now.