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Mary Ann Mason 1999
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Chapter 1 pages 1 -10 : Are Mothers Losing the Custody Wars?

For many years I had a recurring nightmare. My ex-husband has kept our five-year-old son beyond his weekend visit and is now in court asking for permanent custody I have not seen my son for several weeks. The nightmare takes different turns. Sometimes I am searching for my son in his school playground, or on the streets; he is never there. In another version I am in court. The judge is questioning me about my work habits as a lawyer and asks how I can be a good mother when I work such long hours. Sometimes he questions my ex-husband as well, impressed that his university job gives him a flexible schedule. The judge disapproves of me. I know I am going to lose my son.

Whichever direction the dream takes, when I wake up I am always greatly relieved. The real-life incident on which the nightmare is based did not end that badly. My ex-husband, in the wake of a bitter argument in which threats were exchanged, kept our son for several days but then relented and returned him to me. My son smiled at me as I picked him up at his dad's house, unaware of my inner terror.

The recurrence of this nightmare long after my son was a toddler attests to the heavy burden of guilt and anxiety I carried as a working single parent. I deeply feared that I would lose what was most important, yet I was uncertain that I was properly fulfilling my role as a mother.

Motherhood is the central dilemma in feminist thinking. Some feminists argue that the family contributes as much to women 's subordination in society as discrimination in the workplace. The stereotype of women as "natural" mothers, they claim, has shackled women to the family and prevented their rise in the outside world. Other feminists, however, point out that mothers still perform the great bulk of child-raising duties both within marriage and increasingly outside of it, and they need support in that effort. To deny their motherhood, these feminists believe, is to disadvantage them and their children.1

Nowhere is this dilemma more evident than in cases involving child custody As a result of the rejection of maternal preference in family law, mothers have lost the special protection the law afforded them in their "natural" role as custodians of young children. Many feminists are reluctant to challenge this new direction in the law; they fear that fighting such a trend would encourage the stereotyping of women as "natural mothers," which could be used against them by men in the home and the workplace.

The only arena in which feminists have joined forces and intervened is in working mother cases, where the courts appear to punish mothers who take an active role in the workplace. Working mother cases where mothers' rights are pitted directly against fathers' rights are at the very core of the gender wars; they reveal the skein of competing parental rights that characterize modern custody disputes. Above all, they illustrate the failure of our system to put children first.

A well-publicized dispute in Michigan appears at first glance to support claims that working mothers who leave the home are losing custody unfairly. The facts of the case also raise the volatile issues of unwed teen motherhood, domestic violence, and child support blackmail. Yet these critical issues are ignored by the court and the press, who focus only on the day care issue.

Jennifer Ireland gave birth to Maranda when she was a sixteen-year-old high school student. The father, Steven Smith, was also a sixteen-year-old student at the time. They never married. According to Jennifer, Steven at first wanted her to have an abortion. Later, when the baby was born, he encouraged adoption. Jennifer was undecided. She put the baby in foster care for three weeks, contemplating adoption, but could not go through with it. She brought Maranda home and continued high school while her mother took over a large share of the childcare.

Steven did not see Maranda very much that first year. He claimed later that "Jenny's parents told me to stay away from Maranda, because Jenny was deciding on adoption."2 He did begin to see Maranda regularly as she grew older, and she had a room in his parents' house for her weekend visits.

When Mananda was two years old Jennifer graduated from high school with honors and won a scholarship to the University of Michigan. She moved from Detroit to Ann Arbor and enrolled Maranda in a home cane facility operated by a mother with two children who looked after other children. For the first time Jennifer asked Steven for child support. He objected to the amount requested, and the hostility between the two young parents intensified. Jennifer filed a complaint against Steven for assault. At around the same time Steven filed a petition for custody. He claimed that he was better able to care for Maranda since his mother was a full-time homemaker and would cane for her at home. Steven would be living with his parents and attending the local community college.

On June 27, following Jennifer's first year at the University of Michigan, Judge Cashen of Macomb County Circuit Court ordered her to give up Maranda to her father. In his order Judge Cashen held that both parents were competent. However, he went on to say, while living with her mother Maranda would be "in essence raised and supervised a great part of the time by strangers." While living with her father, the judge said, Maranda would be "raised and supervised by blood relatives."3

The story immediately was labeled the Day Care Case and picked up by the wire services as a hot women's rights issue. Jacquie Steingold, a board member of the National Organization for Women, said, "It illustrates an attitude toward women about where they should be-the bedroom, kitchen and those kind of places, not at college."4 Many saw the judge's ruling as a punishment for modern women who dare to work, or become educated to work, outside the home. Jennifer's own remark was repeated by many commentators: "It's just unfair. It's a decision based on the 1950s."5

Jennifer was wrong, however. This ruling could not have occurred in the 1950s. In all the fuss about day care no one noted the recent revolution in legal rules that made such a decision possible. In the 1950s, and in many states well into the 1980s, mothers like Jennifer were protected in custody disputes by two separate but well-established rules: the tender years doctrine, which favored mothers, and the complete lack of legal standing of unwed fathers to sue for custody In the 1 950s Steven could not have brought his claim for custody before the court.

The tender years doctrine (or maternal presumption, as it was often called) was well established by the 1 920s. By the 1 950s in Michigan and all other states it was the law The rule of maternal presumption reflected a universally held belief in the early part of this century that mothers by nature were the more nurturing parent for very young children. In their drive for equal rights in the seventies, many feminists spurned this very assumption, believing it fixed women as second-class citizens in a patriarchal structure.

Feminists have not always been so ambivalent about motherhood. The pioneering feminists of the nineteenth century fought hard to establish custody rights for mothers in the face of a common law tradition that gave fathers paramount rights of custody and control. At the very first women's rights gathering in 1848, the newly drafted Declaration of Rights and Sentiments presented custodial rights for mothers as one of the primary demands:

He [the legislative and judicial patriarchy has so framed the laws of divorce as to what shall be the proper causes, and in the case of separation, to whom the guardianship of the children shall be given as to be wholly regardless of the happiness of women -- the law in all cases going upon the false supposition of the supremacy of man, and giving all power into his hands.

Early feminists struggled to turn the law away from seeing children as the property of their fathers and more toward considering the needs of children. The traditional view of children as helping hands in a labor scarce economy slowly gave way to a romantic, emotional view of children; they were no longer legally akin to property under the complete control of their fathers, but were finally acknowledged to have interests of their own. Their interests increasingly became identified with the nurturing mother. Feminists strongly applauded the handful of earlv-nineteenth century judges who boldly overthrew fathers' property rights in favor of mother nurture. In 1842 a New York judge defied established common law tradition and awarded custody of a three-year-old sickly daughter to her mother, explaining that the law of nature has given to her an attachment for her infant offspring which no other relative will be likely to possess in an equal degree, and where no sufficient reasons exist for depriving her of the care and nurture of her child, it would not be a proper exercise of discretion in any court to violate the law of nature in this respect.

By the beginning of the twentieth century most judges concurred with this radical new view of the importance of maternal nurture for children of tender years. The condition of children was greatly advanced as their right to nurture was placed above their fathers' right to their labor.

Ironically, the second wave of feminism-the modern women's rights drive toward equality before the law-helped to abolish this hard-won gain. The modern push for equality has focused mostly on the workplace, but equal rights in the family are of prime concern to second-wave feminists as well. The founding statement of the National Organization of Women (NOW) in 1967 decried "half equality" in the marriage relationship and called for a reexamination of laws governing marriage. "We reject . . . that home and family are primarily woman's world and responsibility-hens, to dominate-his to support. We believe that a true partnership between the sexes demands a different concept of marriage, an equitable sharing of the responsibilities of home and children."9

Judges and state legislators have taken seriously the current feminist message that mothers and fathers should be treated equally under the law. Maternal presumption has been largely eliminated from the law and language of child custody. A New York court expressed the new thinking: "The simple fact of being a mother does not, by itself, indicate a capacity or willingness to render a quality of care different from that which the father can provide."

With this simple statement this judge challenged nearly a century of judicial presumption in favor of mothers. To support his thinking the judge invoked the authority of the social scientist Margaret Mead. He quoted her as damning the maternal preference as "a mere and subtle form of anti-feminism in which men -- under the guise of exalting the importance of maternity -- are tying women more tightly to their children than has been thought necessary since the invention of bottle feeding and baby carriages."

Not all courts are as outspoken in reducing the importance of mothers or in suggesting that maternal presumption is a male conspiracy. Nevertheless, the rule that the interests of a child of tender years are best served in the custody of the mother has been legally abolished or demoted to a "factor to be considered" in nearly all states.

Not only feminists calling for equal treatment under the law, however, have persuaded legislators and judges to abandon the maternal presumption; their arguments are combined with the reality that great numbers of women have abandoned full-time housekeeping for the workplace-most of whom are mothers. In 1970 only 27 percent of women with children under age three were in the workforce; by 1985 this figure was more than 50 percent and has remained so. Though many (if not most) of these women are driven to work by economic necessity in a downward-drifting wage structure, legislators and judges are confused by the new roles mothers are playing. An Illinois court declared, "the 'tender years' doctrine has no application if the mother is working and not in the home full time."

To my knowledge not one of the dozens of commentators and talk-show hosts in the course of the Ireland-Smith dispute mentioned that until recently Judge Cashen would have been obliged to apply the tender years doctrine. He would not have been required to treat Steven and Jennifer as equally appropriate parents of a three-year-old. Instead he would have had to presume that mothers are better suited than fathers to nurture small children. The concept of maternal presumption, which reigned for more than 100 years, appears to have completely disappeared from public discourse.

Also absent from the discussion was any notice that Steven was not married to the mother. As will be discussed in chapter 4, it has been little more than twenty years since the U.S. Supreme Court, in Stanley v. Illinois, recognized any custodial rights for unwed fathers, much less those equal to the mothers'. This case seems to have given Steven-who never lived with Jennifer and Maranda-the same rights as a recently divorced father who had always lived with them, or, for that matter, the same rights as Jennifer. And no one found this worthy of comment.

Judge Cashen's so-called day care decision was possible because the law and social attitudes have swung dramatically away from favoring either mothers or marriage. Biological parenthood, not marriage or nurture, defines parental rights. The law must treat biological mothers and fathers as equals. Moreover, it gives no special consideration to the needs of infants and toddlers. The rules that Judge Cashen is required to follow in Michigan are the same as in most states: he must consider the biological parents first, and then make a decision in the "best interests of the child." In the vacuum created by the retreat of a maternal presumption, state legislatures have drafted statutes to direct judges left with the task of applying the elusive "best interests" standard. Most states provide only a laundry list of suggestions for the judge to consider. These may include affective factors such as emotional ties, which often favor the mother, but they also usually mention economic stability, more likely to give advantage to the father.' In any event they are only suggestions, and by no means determinative. In fact hundreds of family court judges are forced every day to make difficult decisions in the best interests of very young children with no clear rules to guide them. When a mother and father both fight to gain physical custody, judges are frequently at a loss.

A "best interests" rule sounds enlightened and child centered. It appears to have moved beyond gendered stereotypes, to focus only on what is good for a particular child. As well intentioned as it may seem, it is not child centered. It provides no guidance about what we as a society believe is in the child's interest; it offers no recognition of the developmental needs of a child; it leaves no room for the wishes and feelings of the child; and, perhaps most damningly, its vagueness opens the door to almost complete judicial discretion. This allows a judge who doesn't believe in day care to award a child to the other parent. In addition, such a rule encourages parents to fight over custody, because the outcome is unpredictable. Fathers, knowing there is a real opportunity to win, may play the "custody card" to bargain for financial advantage in a divorce settlement. Thereby the door is open for a full-scale battle that pits fathers against mothers and in no way enhances the interests of the child.

In the Ireland-Smith dispute, we don't know for certain why Steven pursued custody. He claimed he did not like the way Maranda was being raised; Jennifer claimed he did not want to pay child support. We do know that demands for child support are a common trigger of custody disputes.

Once the court battle began the hostility between the two escalated rapidly Although trial proceedings were closed, later interviews with some of the parties on national talk shows and in the press revealed several nasty details of the confrontation. Jennifer raised the incident of assault in October 1992, when she complained to police that Steven struck her. (Smith was arraigned on that charge the day after Cashen's decision, but the charges were dropped for unexplained reasons.) Jennifer's lawyer claimed that Smith's parents stalked her, driving by her house every day to see whose cars were outside.' Domestic violence, common to many custody disputes, appears to have occurred between these two young people as well.

Steven Smith responded to Jennifer's domestic violence allegations with allegations of his own. At a press conference Smith said he had seen Maranda "being pushed by Jennie, pulled by Jennie, slapped on the counter by Jennie and just being rude and yelling." He also claimed that Jennifer handed Maranda off to her friends or her mother and never took care of her. He continued, "Maranda's care is my main concern. I can be a better parent because I am a better person."

In his order Judge Cashen did not rule on these issues of alleged domestic violence and child abuse. He ruled that both the parents were equally competent. His only comment regarding the outstanding assault warrant against Smith was, "The parties in their youthful way apparently crashed or mauled one another. It is superfluous and can have no bearing on the issue of custody." Judge Cashen, like most judges, did not want to enter the dark waters of domestic violence. In most states judges

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