'Tender years' make it tough for dads

Family courts still favor mothers in custody battles, even without a sound legal basis

January 16, 2014 7:00AM ET
John Moore/Getty Images

The divorce from my first wife took three years from my otherwise happy life. The low point came pretty far into things, after the fruitless attempt at mediation and about midway through my savings. Many things stood to be contested between my ex and me — money, apartment, the holiday flatware — but nothing mattered so much as custody of our son, who was 3 at the time. Little did I realize that in this particular matter, equality before the law didn’t actually apply.

My ex and I had decided early on to have joint custody. A promising enough start, but joint custody is a legal term. The distinctions between what the courts define as “physical” custody and its “legal” counterpart are not to be trifled with. Neither specifically addresses how much time one gets with the child. This tends to complicate matters between individuals seeking, as we were, full-spectrum dominance over our post-conjugal affairs. All apologies to King Solomon, but you can’t just “divide the living child in two, and give half to the one, and half to the other.” Negotiations must ensue. If you fail to agree, you visit the judge and he or she agrees for you. When that happens, joint custody is rarely the outcome.

I may be dumb, but I’m not stupid. The judge was to be avoided. (When I did eventually see him, it had to do with money, not custody. Still sucked.) My ex had produced a custody-sharing document that had some pluses but many minuses, as I saw it. I had a list of alterations I wanted to make, and a haggling strategy that I felt confident would allow me to secure at least some of them. In retrospect, this was when I reached the low point of the divorce, and when my attorney, who to this day eats prime rib with my fees, earned her keep. “Don’t be stupid,” she said. “Sign the thing and do it quick, before she changes her mind.”

My ex, she explained, was being generous in offering me anything. She could, if she chose, simply dictate. Had I not heard of the Tender Years Doctrine? I had not, so my lawyer told me about it. It is a legal presumption that favors maternal custody of children up to the age of 5. (I guess kids go tough at 6.) If I wanted to contest custody, my lawyer added, I would have to overcome that tender bias, and that meant convincing a judge that my ex was an unfit mother, which I couldn’t do, because she wasn’t and isn’t.

The salt in the wound, from my perspective, was that the Tender Years Doctrine no longer officially existed. Once part of the family law code in most states, Tender Years had by the 1970s been replaced with Best Interests of the Child, a gender-neutral standard that squares better with the Equal Protection Clause of the 14th Amendment. Definitions of best interest vary from state to state and are always difficult to determine, which, my lawyer assured me, mattered little — a judge would likely ignore them. No court would openly decide in my ex’s favor on the basis of her sex. “But don’t be stupid,” she said. (She liked saying that to me.) “It’s still around, and if you fight, you’ll lose.”

I signed the agreement.

Our understanding of child care remains lost in a fog of near-mystical beliefs, and not necessarily to the advantage of women.

The roots of the Tender Years Doctrine stretch back to the mid-19th century in England, when a parliamentarian named Thomas Talfourd rectified a miscarriage of what he called “natural justice.” Talfourd’s 1839 “Act to amend the Law relating to the Custody of Infants” recognized the legal right of women to custody of young children. Prior to that, parental rights functioned in much the same way as property rights. The father owned the child. Women, as William Blackstone put it in his massive, four-volume “Commentaries on the Laws of England” (1753), held “no power … only reverence and respect.”

Divorce provokes no end of strange and powerful emotions. I don’t know quite the right word for how I felt about Tender Years. The laws and social mores of this country tend to work in favor of men and not women. I understand that. Likewise, I accept that laws can, and at times should, be allowed to make recompense for historical inequities. But to impinge my familial prerogatives based on an archaic understanding of biological determinism more appropriate to a Jane Austen novel or a 1950s milk ad struck me as deeply unfair. That this disposition toward women continued despite a prevailing legal standard denying it seemed worse yet.

Recent U.S. census figures show that only 17 percent of fathers have primary custody of their children. In all likelihood, this statistic does not demonstrate the continued impact of Tender Years or entrenched discrimination in our family courts. Most divorces, with or without children, are settled before a visit to the judge. Instead, the two separating parents typically agree to give custody to the mother (or the father disappears, and custody falls to her). Regardless, it’s clear that Tender Years reflects not just a legal bias but the ongoing reality of parenting in this country.

Meanwhile, our understanding of child care remains lost in a fog of near-mystical beliefs, and not necessarily to the advantage of women. The idea that pregnancy, birth and breast-feeding bind a mother to her child in some genetically preordained way doesn’t strike me as a comfort to women. And what of those mothers whose maternal compulsions don’t meet that ideal? Do they lack something?

Men receive lavish praise for the slightest effort to look after their young, in ways that rile me no end. Mostly this is because a man caring for a child is still seen as extraordinary. He is giving something that is not entirely expected, and rarely demanded. At the same time, though, the rewards afforded a “good mom” continue to hold a greater social value than those for an involved dad. There are few things so powerful as the lure of a traditional societal role, and engaged moms are considered instinctive paragons of virtue in ways that dads simply are not.

Most women are taught (or are forced to learn) from a young age how to care and be caring for little ones. Not me. I had never changed a diaper, warmed a bottle or, quite frankly, paid the slightest attention to a baby before I had one. My decision to be an engaged father was deliberate. I didn’t have to be one. I chose to. The deep parental need that many mothers experience from the beginning arose only once my ex finished her maternity leave (another discussion worth having) and was back at work and I had my son more to myself. Turning my choice into an unquestioned obligation remains the only, and not yet fulfilled, counter to the Tender Years Doctrine. Men must do more for their children, be more involved, be around more and become the kind of parents who would alter our understanding of natural justice. 

Theodore Ross is the author of a memoir, Am I a Jew? (Plume, 2013). His writing has appeared in The New York Times, Harper's magazine, the Oxford American, The Atlantic, Saveur, Buzzfeed, Medium and elsewhere. He is currently working on a book about modern manhood.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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