THE VIRGINIAN-PILOT
Copyright (c) 1997, Landmark Communications, Inc.
DATE: Monday, January 13, 1997 TAG: 9701110028
SECTION: FRONT PAGE: A9 EDITION: FINAL
TYPE: OPINION
SOURCE: ANN SJOERDSMA
LENGTH: 87 lines
A civil-trial judge has no tougher decision to make than to choose between two loving and fit parents in a custody dispute. Even Solomon would be hard-pressed.
Before feminism altered traditional sex roles, judges had it easier. Mothers simply didn't have custodial rights. Period. At common law, children were considered the chattel of their fathers and remained with them regardless of their fitness. (With some exceptions, of course.)
In the late 1800s, a legal doctrine known as ``tender years'' developed that favored giving mothers, the ``nurturing'' parents, custody of very young (or female) children. But when a child turned 5, custody often reverted to the father.
As women gained more rights in the 20th century, courts shifted toward the tender-years doctrine. It peaked from 1900-1950, when women were traditionally homemakers and primary caretakers of young children. But it was always viewed as a ``presumption,'' ``inference'' or ``preference,'' never as a right.
Feminism proved the death knell for the sex-biased, but, some (including me) would argue, rational doctrine.
Virginia was especially loathe to abandon it. The legislature prohibited presumptions in custody cases, only to have the Virginia Supreme Court rule that ``tender years'' was an inference. So the General Assembly prohibited inferences. The Virginia Supreme Court finally, and reluctantly, killed the doctrine in 1986.
At least on the books.
I belabor this little-known legal history because it underlies a controversy that has been brewing in the General Assembly since Republican Sen. Mark Earley of the 14th District introduced Senate Bill 496 last year. It would have made joint legal and physical custody a ``rebuttable presumption.''
The bill, spurred by fathers'-rights groups, is part of a national trend that began in the early 1980s to challenge the vestiges of the tender-years doctrine. Says Norfolk attorney and mediator Tazewell T. Hubard III: ``Tender years is still alive and well, though judges don't refer to it by name.'' I agree.
Unfortunately, S.B. 496, since amended, introduces more bias to the custody equation - this time, to the implicit benefit of fathers, who may or may not be sincere in sharing parenting responsibilities.
As S.B. 496 now reads, judges are required to give ``due consideration to the benefits to the child of joint legal and physical custody'' in determining ``the best interests'' of the child. Funny, now it's the legislature that likes prohibited presumptions and inferences - in this case, that joint custody benefits all children.
The courts do have an attitude problem, but S.B. 496 is not the solution. Instead of legislation, activist fathers should look to education. Seek cooperation, not control. For their children's sake.
Many judges discount the value of a father's involvement in a child's life. They blindly adhere to the parenting model of Mom as nurturer and Pop as provider.
But stacking the deck to favor joint custody is only going to hamstring judges, not enlighten them. It will also increase litigation and minimize real concerns about the feasibility of joint custody in a given family.
Far too often, disinterested fathers who shared no parenting responsibilities during marriage seek joint custody in order to reduce their support payments. Once they obtain it, mothers still take the children shopping for clothes, shoes, school supplies - only with less money in their purses.
On the flip side, mothers sometimes wrongly withhold ``visitation'' - a legal term that needs to be eliminated - from noncustodial fathers when child support is delinquent. Both parents are in contempt of court, but only the child suffers.
Nothing in current Virginia law prevents judges from ordering joint custody, even when parents don't request it, if it would serve the children's best interests. Virginia judges and parties already have the entire range of options in support/-custody arrangements.
``You can be as creative as you want to be,'' says Hubard, ``depending on how well the parties communicate. And joint custody need not be a 50-50 split; it can be 70-30.''
The custody issue has changed dramatically. But not without some hostility and distrust. Mediation holds promise for more cooperative, and child-friendly, dispute resolution. Norfolk trial courts are now requiring at least one session in all contested custody cases.
But the broad ``best interests'' standard, when applied wisely and compassionately, is truly law enough. Granted, it also embraces all of a judge's child-rearing prejudices. But prejudices, as history illustrates, change with the times.
Educate, don't legislate. MEMO: Ann G. Sjoerdsma, an attorney, is an editorial columnist and book
editor for The Virginian-Pilot.