The following was contributed by reader and Fathers and Families supporter, Terry Kee.
In the late 20th century the “tender years’ doctrine was replaced with the “best interests of the child’ doctrine. Still, the “tender years’ bias is alive and well and peddled to domestic court judges as being in the best interests of the child by groups that favor a primary caregiver presumption in lieu of shared parenting. For example, the National Organization of Women of New York State, stated in March of 2006, “NOW NYS has always favored primary caregiver presumption legislation to ensure stability and continuity of care for children.’
The primary caregiver preference in child custody determination is, essentially, the equivalent of the supposedly antiquated “tender years doctrine,’ in the sense that both presume only one parent – the nurturing parent – should be given primary custody. The only difference is that the term “primary caregiver’ is, ostensibly, gender neutral and therefore easier to pass off as being “in the best interests of the child.’ There is one other distinction of note – where the “tender years doctrine,’ by definition, applies to infants and possibly toddlers, the “primary caregiver presumption’ is a nebulous term that could apply to older school aged children. This distinction means that a judge using the primary caregiver presumption could, theoretically, award sole custody of a 17 year old to just one parent.
But if the “primary caregiver’ preference is gender neutral, what is the issue?
In an environment in which both parents work outside of the home and family responsibilities are shared; it is often very difficult to say which of the parents is the “primary caregiver.’ But even if the primary caregiver can be identified, custody to this individual is not necessarily in the best interest of the child. Where one parent works outside the home and the other stays home for the benefit of the children, many judges have erroneously applied the primary caregiver designation, and subsequent custody, to the stay-at-home, but lesser parent.
Automatically awarding custodial status to the primary caregiver is erroneous because the choice these parents made, while married, was likely based on economic maximization rather than child development maximization. To illustrate this, let”s suppose that individual “A’ has a doctorate degree and is a professor at a 4-year University and has exceptional child care and child development skills, while individual “B’ has a high school diploma and is a cashier at the local supermarket and has poor child care and child development skills. After these individuals were married and had a child together; whom do you think kept their job and whom do you think stayed home to care and provide for the child? From an economic standpoint, the family is clearly better off if the professor works rather than stay home. But, from the standpoint of child care and development maximization this family would also be better off if individual A (now Parent A) provided for the child”s care and development.
Now, after falling in love with a fitness instructor at the local gym, Parent B files for divorce. The question then, is how should Parent A and Parent B share in their child”s upbringing? Despite the fact that Parent A is superior on both counts – parenting capacity and earnings capacity – the National Organization for Women believes that Parent B should be awarded primary custody based solely on that parent”s historical status as primary caregiver. Parent B will be rewarded in the divorce by receiving custody of the child and support so that Parent B and the fitness instructor can afford to maintain the kind of lifestyle that the child was previously destined to have. Meanwhile, Parent A is subjugated to the second-class status of “non-custodial parent.’ This arrangement is neither fair, nor equitable and is often abused by the parent with the custodial power and control. It also robs the child of meaningful development opportunities.
When the child-sharing arrangement is unbalanced, as is the case of the every other weekend arrangement that is standard practice in most custodial/non-custodial arrangements, the child is put in a position of having his or her relationship with one parent drastically reduced. Genuine bonding between the non-custodial parent and child is compromised. One parent has power and control over the child while the other parent is relegated to “visitor’ status.
In 2010, it”s about time we consider the child”s long term best interests ahead of an out-dated paradigm.