Equal Protection Under the Law? by Anne P. Mitchell, Esq.
Are men entitled to "Equal Protection Under the Law"?
The Fourteenth Amendment states quite simply, and succinctly, that no State shall "...deny to any person within its jurisdiction the equal protection of the laws." The Fourteenth Amendment has been used to successfully challenge unfair laws, and to force an affirmative answer to these questions:
Are whites who choose to marry blacks to be afforded the same treatment as whites who choose to marry whites? (Yes.)
Are women in the service entitled to the same dependent benefits and benefit-determining procedures as men in the service? (Yes.)
Are blacks entitled to the same quality of education and the same educational opportunities as whites? (Yes.)
To this list we add the questions:
Are men who find themselves in a custody or timeshare (visitation) dispute entitled to be judged by the same standards as the women who sit opposite them?
Are those men in fact afforded such equal treatment?
Years ago, at common law, custody of minor children automatically went to the father. The husband's word was law. He was master of his family, and, in the words of one judge, along with the responsibility of being the head of the family came a "corresponding entitlement to the benefits of his children, i.e., their services and association." Children were, in effect, so much chattel, as the cows, the plow-ox, the family homestead, etc.
Many courts still held to this notion far into the 19th century. An Illinois case, for example, held fast to this rule even though by the time the case was decided (1889) many states had started to drift from this position. In the case known as Umlauf v. Umlauf, the Supreme Court of Illinois says: "Unquestionably no other person can feel for a boy, or show to him the love and affection which he receives from his mother. But the rule is 'that the right of the father is superior to that of every other person, and can only be made to yield when it is manifestly inconsistent with the health and welfare of the child.'
Eventually this hard and fast rule began to be softened in order to consider the rights and feelings of the mother, leading to what was to become known as "the tender years doctrine". This doctrine suggests that custody of a child could be awarded to its mother if the child were of "tender years".
Even though it didn't really catch on until towards the end of the 19th century, the tender years doctrine's application in the United States can be traced back as early as the year 1830, to the Maryland case of Helms v. Franciscus. This decision stated that:
"The father is the rightful and legal guardian of all his infant children; and in general, no court can take from him the custody and control of them, thrown upon him by the law, not for his gratification, but on account of his duties, and place them against his will in the hands even of his wife....Yet even a court of common law will not go so far as to hold nature in contempt, and snatch helpless, puling infancy from the bosom of an affectionate mother, and place it in the coarse hands of the father. The mother is the softest and safest nurse of infancy, and with her it will be left in opposition to this general right of the father."
One can certainly see that this doctrine seems to mark the beginning of a maternal bias in the courts which has persisted to this day.
Another example, this one from the Supreme Court of Ohio explains that:
"As a general rule the parents are entitled to the custody of their minor children. When they are living apart, the father is, prima facie, entitled to that custody, and, when he is a suitable person, able and willing to support and care for them, his right is paramount to that of all other persons, except that of the mother in cases where the infant child is of such tender years as to require her personal care; but in all cases of controverted right to custody the welfare of the minor child is first to be considered."
It is of interest to note that what started out as a move to recognize the rights of the mother became cast and crystallized as something which must be done in the best interest of the child. Lines such as "The mother is the softest and safest nurse of infancy" cast this maternal preference in a most humanitarian light: this is for the good and nurturing of the child. Thus for the child's sake he must be left in his mother's custody.
Some courts have finally begun to recognize the inherent weaknesses of the tender years doctrine, although it was alive in one form or another in 30 states as recently as 10 years ago. One New York judge's opinion of the doctrine was that "[t]he 'tender years presumption' is actually a blanket judicial finding of fact, a statement by a court that, until proven otherwise by the weight of substantial evidence, mothers are always better suited to care for young children than fathers."
The Alabama Supreme Court addressed the issue of whether such a maternally-slanted bias could withstand a 14th Amendment challenge, and found that it could not. The court stated: "...we conclude that the tender years presumption represents an unconstitutional gender-based classification which discriminates between fathers and mothers in child custody proceedings solely on the basis of sex."
Unfortunately, despite some courts' recognition that the tender years doctrine, or other maternal biases, are inherently unfair, the vast majority of disputed custody cases are resolved with custody going to the mother. Even in courts which have found the tender years doctrine to be repugnant, there is still a judicial bias towards giving custody to the mother. A recent study in the counties of San Mateo and Santa Clara, in California, found that even where custody was not contested, and where both parents requested that the court give custody to the father, in nearly thirteen percent of the cases custody was given to the mother!
The maternal bias in this system is not limited to the men in the robes, either. Mediators, social workers, and custody- evaluating psychologists (often appointed by either the court or the Department of Social Services) for the most part all seem to operate on the basic premise that children, especially young ones, belong with their mother. A recommendation from one of these family "professionals" is often enough to influence a court to award custody to the recommended parent.
Therefore, many of the inequities that exist in our family court system are the result of the ingrained, personal biases of the people who work within the system, and who apply the rules. Judges and other legal professionals carry with them a bias which serves to undermine the (sometimes) equitable intent of the laws and rules under which they operate. They may not even be consciously aware of the bias which influences their decisions and recommendations, although in some cases it is clear that they are not only aware of their bias, but they seem to wave it as a banner.
Once recognizing and acknowledging this bias, we can start to work at correcting the imbalance which it has perpetuated, just as is done with any other discriminatory bias which has wronged the peoples of our society. Perhaps the most important factor in this case will be the educating of those who make the decisions: the judges, the lawyers, the psychologists and social workers. Harder will be the task of educating society in general, as for so many years we have been intently trying to rectify the inequities in how women are treated. Any move towards swinging the pendulum of preference back towards an equitable middle-stance will be perceived as a step backwards for the cause of women.
Be that as it may, work at it we must, until the answer to both of these questions is a resounding "yes":
Are men who land in our nation's family courts entitled to be judged by the same standards as the women who sit opposite them?
Are those men in fact afforded such equal treatment?