By Cassie Greenwald
For women, having custody is not purely a straightforward matter of being able to raise children according to their own choices. There is a complicated relationship of dependence and independence interwoven into women’s rights. “Joint custody has the potential both to help women develop more independence and to aggravate the problematic aspects of dependency in women’s lives. Although joint custody was expected to help women, it has had mixed effects, benefiting some women, hurting others, and for still others, helping and hurting at the same time” (Bartlett and Sack, 2015). Custody often exacerbates complicated family dynamics for parents and their children. This article aims to explore the historical content of child custody as well as the current feminist view of family dynamics in a heterosexual context.
Historically, feminists in the nineteenth century fought to establish custody rights for mothers. It was not uncommon for courts to give fathers paramount rights of custody and control. At the very first women’s rights gathering in Seneca Falls, NY in 1848, the newly drafted Declaration of Rights and Sentiments presented custodial rights for mothers as one of the primary demands (Berkeley Law, 2015). Children were viewed as helping hands and the goal of early feminists was to consider the needs of the child. In 1843, a New York judge established common law tradition by awarding custody of a three-year-old sickly child to her mother. The judge explained 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” (Berkeley Law, 2015). Women have long been considered to have natural instincts towards caregiving roles, and therefore should be awarded custody of their children.
Modern women’s rights later fought to abolish these historical gains. This push focused on equality for women in the workplace and equal rights in the family. The National Organization of Women (NOW) in 1967 stated, “We reject . . . that home and family are primarily woman’s world and responsibility 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” (Berkeley Law, 2015). In 1970, 27 percent of women with children under the age of three were in the workforce. By 1985, more than 50 percent of women with young children were in the workforce.
Currently some argue that viewing women as “natural” mothers is an inaccurate stereotype and prevents women from having a role outside of the home. This rejection of maternal preference has cost mothers the special protection that was once afforded them when they were considered “natural” caregivers for their young children. This is a double-edged sword for feminists. Fighting this inclination might encourage the stereotype that women are “natural mothers” while not fighting for maternal rights might cause women to lose custody of their children in instances where they might be a more suitable caregiver.
There are situations where equal access parenting is not best for the mother or the child. The court generally gives custody to the more “fit” parent. “Although a recent National Institute of Justice study based on custody mediation cases in California found that battered mothers who reported domestic violence to the court were less likely to be awarded primary custody than those who were abused but did not report it” (Tucker, 2008). Research suggests that men who abuse their wives are more likely to also abuse their children.
In instances where both parents are equally capable of caring for the child, the best interest of the child is the deciding factor for custody. It is estimated that one million children are affected by divorce every year. In 72 percent of these cases, mothers retain sole custody of the children while fathers are awarded sole custody 9 percent of the time, and joint custody is awarded 17 percent of the time. Custodial mothers are 44 percent more likely to live in poverty than custodial fathers.
There is evidence that women have sometimes been awarded custody of children in spite of the father demonstrating interest and the means to care for them. Cynthia A. McNeely suggested that courts are biased because they reflect the patriarchal notion that men are not meant to be caregivers and women are not meant to be breadwinners. There are organizations that exist to protect the rights of the father against this type of bias.
What is best for the child does not always reflect the wishes and feelings of the child. When deciding custody, there is complete judicial discretion. This allows a judge who does not believe in daycare to award custody to the other parent and encourages parents to fight over custody. Because women are 44 percent more likely to live in poverty, men might bargain for financial advantage in the divorce settlement. The fight for custody is often a power play between the parents that in no way reflects the interest of the child. Some women choose to stay at home and take care of their children; and some women choose to pursue a career. Some men want to be involved in childcare and others do not. In every instance, parents should put the needs and interest of the children before their own.
Bartlett, K., & Sack, C. (n.d.). Joint Custody, Feminism and the Dependency Dilemma. Retrieved April 5, 2015.
Berkeley Law – The Custody Wars Preview. (n.d.). Retrieved April 5, 2015.
Tucker, J. (2008, January 1). MMO: War of the wounds: What’s wrong with the father’s rights movement by Judith Stadtman Tucker – page 2. Retrieved April 5, 2015.