Another perspective on the primary caretaker standard

Ampersand at Alas, A Blog, writes approvingly today about a "primary caretaker" standard for child custody, instead of the nebulous "best interests of the child" standard that is currently used.  As he explains: "The idea is that in child custody cases in which one parent clearly was the child’s primary caretaker (measured by such things as who made doctor appointments for the kid, who took the kid clothes-shopping, who drove the kid to soccer practice, etc), that parent should have a presumption of custody."

There are clearly problems with the "best interests" standard, at least as currently implemented.  Ampersand’s post is inspired by an article by Jack Stratton, which is mostly about why abusive fathers should never have custody of their children, even if the abuse was directed at the mom rather than the kids.  Stratton argues that the presumption in the courts this days is so strongly in favor of joint custody and visitation rights that men convicted of assaulting, or even murdering, their wives are generally allowed visits with their children. 

But I also have some concerns about the "primary caretaker" standard.   If there was a well-established standard that the primary caretaker would always get custody, I think it might discourage women from negotiating for a more even share of parenting duties.  I could see mothers feeling that they had to make sure they did at least 60 or 70 percent of the caregiving, just in case.  (I say 60 or 70 percent since it seems that men generally get more credit for the parenting that they do, because society’s expectations are so low.)

A more extreme case is that of reverse traditional families.  I’m on an email list of women who are the wage earners in families where their husbands are the primary caretakers.  The topic of how this arrangement would be viewed by the courts in the case of a custody dispute has come up more than once. 

It’s a matter of great fear for some members that if they were divorced they’d lose custody.  They would have loved to have been able to be the at-home parent, but their husbands didn’t have careers that made that possible.  If the primary caretaker standard was well-established, some of these women might opt to put the kids in daycare, pushing their husbands to get any job, rather than jeopardize future custody.  And this is among the already small population that is currently willing to consider reverse traditional arrangements.

The bottom line is that I don’t think we’re ever going to come up with a nice clean rule that makes sense in all cases.  Families are just too complicated and messy.  There are always going to be exceptions.  While I know judges don’t always make the best decisions, I don’t think we’re really going to improve matters much by trying to replace nebulous standards and human judgement with simple rules.

(For the record, absent a psychotic break or something, I think my husband, who is the primary caregiver, would deserve primary custody if we divorced.  Kain ein horeh.)

7 Responses to “Another perspective on the primary caretaker standard”

  1. Andrea Says:

    “But I also have some concerns about the “primary caretaker” standard. If there was a well-established standard that the primary caretaker would always get custody, I think it might discourage women from negotiating for a more even share of parenting duties. I could see mothers feeling that they had to make sure they did at least 60 or 70 percent of the caregiving, just in case. (I say 60 or 70 percent since it seems that men generally get more credit for the parenting that they do, because society’s expectations are so low.)”
    Do you really think so?
    I would think that such a standard would encourage men to be more involved, since it would be clear to them that otherwise they would not have custody of their children on divorce. As it is I find it kind of silly that joint custody is presumed even in cases where the fathers never see their children.
    There was recently a case in Toronto (you can look it up on the http://www.thestar.com website if you are interested) where a man and woman were married only long enough to get pregnant. He spent most of the next several years living and working in other countries, including the US and UK. He sued for custody on their divorce and despite the fact that he had basically no contact with his daughter, and despite the mother’s claims that the father’s mental health was unstable and he had often tried to commit suicide, he was permitted visitation rights. Which he recently used to try to kill his daughter and himself.
    he’s dead now adn his five-year-old daughter is in critical condition after he threw her off a highway overpass.
    The system is seriously broken and biased towards joint custody if this can come to pass. Though I realize it’s an unusual case.
    I understand your points, but I would think that overall, if parents realized that their parenting responsibilities would be taken into consideration on custody issues on divorce, that it would encourage *both* parents to be as involved as possible. Which would be to the benefit of children and of women. Or no?
    Do you think it is possible in traditional or reverse-traditional arrangements for the secondary caregiver to spend enough time with their children to secure visitation or some form of joint custody on divorce?
    I hope this doesn’t come across as antagonistic. I’m genuinely curious. I thought about doing a track-back (and still might) but hoped you wouldn’t mind a question or two here.

  2. Beanie Baby Says:

    You get the car, I get the kids

    Half Changed World had an interesting perspective on custody standards in divorce today. (I know, so much for a light post day!) This was in response to Ampersand’s post on the same topic, which was in response to yet another,…

  3. Betsy Says:

    See, and here’s the concern *I* have about this (from a purely personal point of view.) My ex- and I (not yet divorced, for reasons related purely to logistics) go round and round about this – he says that I am the parent with ‘primary custody’, and thus am on the front line for almost all of the responsibility. I would *much* rather have joint or shared custody – including visitation that extends beyond the current 2 weekends a month scenario – and will strive for just this when we finalize our arrangements.
    Why? He is a capable, competent parent. And I did not envision solely shouldering 90% plus of the responsibility of raising these school-aged kids when I had them with him way back when. Do I love my children? Absolutely. Do they also love their father, and benefit from their relationship with him? Absolutely.
    In this instance, any arrangement that awards me ‘primary’ custody puts him the role as my ‘helper’ – or the one who ‘does me a favor’ when his responsibilities get expanded. And – much in the same way I objected when my mother thanked him for sweeping the floor in *our* kitchen by saying “it’s so wonderful to see you ‘helping’ her” – I’m going to object to being placed in that role now.

  4. Stone Court Says:

    Custody Presumptions and Procedures

    Via Half-Changed World, Ampersand advocates the position of Jack Straton (drawing on Martha Fineman) that we should replace the “best interests of the child” standard for custody with the “primary caretaker” standard, which looks at which parent was …

  5. Elizabeth Says:

    Elizabeth again.
    There’s a big difference between past history of parental involvement being taken into consideration in determining custody (which makes a lot of sense to me) and having a rule that the primary caretaker should have sole custody.
    If the primary caretaker is always going to get sole custody, that means that the parent who does 30 percent of the caregiving will be treated exactly the same as the parent who does 0 percent of the caregiving. There’s then no (custody-related) incentive for the other parent to do any caregiving at all.
    I think I do only slightly less caregiving than the typical working mother. (I generally don’t stay home with my boys when they’re sick, and I do less of the morning routine than most working moms, but I work pretty civilized hours, and spend all but a handful of non-working hours with the boys. I buy clothes for them (mostly on ebay), am active in the PTA, make doctors appointments, etc.) But that only makes up perhaps 30% of the parental care that the boys get, while it might be 60% of the parental care that a child of two F/T employed parents gets. So, if the primary caregiver standard were in effect, it would be in the interest of an involved working parent to push for the child to be in day care and the other parent to work as well, in order to even things out.
    (It’s also clear that a great deal depends on the age of the kids. I’d be willing for T. to have primary custody if we divorced now, while the boys are so young, because I think the shuttling back and forth is really hard on such young kids. I’d fight a lot harder for joint custody if the boys were older.)

  6. Andrea Says:

    I see your point. I guess I’d assumed that taking the past history of parental involvement into account would be basically equivalent to primary caregiver equalling primary custody–but that’s not necessarily so.
    I wonder if we’re actually closer than it first appeared on this, but looking at it from different perspectives. I do believe strongly that previous caregiving arrangements should be a huge determining factor in custody decisions.
    Thanks for your response.
    Betsy, thanks to you too. More good points I hadn’t considered.

  7. Anonymous Says:

    I’m not sure how many of you actually have experience going through a custody battle in family courts, but I can tell you from anecdotal experience that it’s a brutal nightmare for everyone involved.
    I am a noncustodial father. I wanted to share parenting time with my ex. It didn’t seem right that my daughter would only see me every other weekend and Wednesday afternoons and I am heartbroken that I can never again take her to school in the morning. Sadly, in the state where we live, presumed joint custody simply doesn’t exist. In other words, if one parent contests joint custody, then it’s a full blown battle to decide who gets custody and who gets to visit their own child. I settled because I didn’t want to put my daughter through what was looking to be a grueling time of forensic psychologists, home visits from social workers among MANY other horrors. I didn’t settle because I love my daughter less than my ex or because I’m less committed to parenting her. I settled because there was no way to win. It continues to be a nightmare as my ex uses her platform as the “primary custodial parent” to hold my daughter custody from me – threatening to take away visiting time with her at her whim. This is the reality of many non custodial parents.
    I believe in presumed joint custody (in the absence of evidence of violence) as opposed to any primary custodian template for sharing parenting. Children have a right to both parents. I believe that parents should be led to mediation before they see a judge so that an outside party can discuss parenting plans that are fair to children.
    My ex and I are both remarried with additional children. Our daughter is now 12 (she was 6 when the whole mess started). We live 10 blocks from each other and I still am only allowed every other weekend and Wednesday afternoons with her.
    My daughter is fully aware that her mother does not want me to see her and now she wants me to take her mother to court for full custody so that I can distribute parenting time more equitably.

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