Rethinking the Substantive Rules for Custody Disputes in Divorce

A few states, mostly in the West and South, still retain a preference in custody disputes for placing young children with their mothers. In most other states, legislatures or courts have replaced the maternal presumption with a rule directing courts to be guided solely by the child\u27s welfare or best interests. A few legislatures have created a new preference for joint custody, directing courts to consider favorably requests by a parent for such arrangements, even over the objection of the other parent. This Article argues that the trend away from the maternal presumption is sensible, but that the current best-interests standard is both too broad and too narrow to be acceptable. It is too broad because the current standard provides too little guidance to courts, given the resources actually available to them, to enable them to reach sensible decisions about how a child\u27s interests will actually be best served. As a guide to more satisfactory decisions, I suggest that judges applying the current test should adopt a loose assumption that the best interests of preschool children will be fostered by placing them with the parent, if there is one, who has provided a substantial majority of the day-to-day care for the child. At least one state supreme court has already adopted a preference for such primary caretakers, recasting the old maternal preference in a sex-neutral form. On the other hand, the best-interests standard is also too narrow, because, in some circumstances, the child\u27s interests are not the only ones worthy of recognition in a custody dispute. I thus recommend that legislatures create a formal preference for primary caretakers, to advance both the interests of young children caught in these disputes and, secondarily, the legitimate interests of primary caretakers