A Brief History Of Custody Laws And Court-Created Fatherlessness

The vast majority of custody awards since the Divorce Boom have been to women. The reasons why might surprise you.

Leslie Loftis
May 15, 2018 · 9 min read

In the 1940s and 50s, attachment theory — the idea that infants form a deep-seated connection, an attachment, to their primary caregiver(s) — became significantly more popular in academic circles.

The sociological reality is that, at this point in American history, women tended to occupy their time at home more often than they do today — a reality, of course, driven as much by biology and the state of domestic technology, in which laundry alone was an all-day chore, as sexism.

Thus, when researchers began to study children’s relational attachments, they looked at mother and child bonding first.

In 1969, when then-Govenor of California Ronald Reagan set off the Divorce Boom by signing the first “No-Fault” divorce bill into law and courts suddenly had to negotiate many child custody arrangements, mother-child bonding was the only relevant study data available.

It dovetailed nicely with the “tender years doctrine” that courts had used to defeat the legal assumption that husbands owned children in the relatively rare event of divorce in the decades prior. This stated that children should stay with their mothers in their “tender years,” which were often defined as anything under seven years old. (See Richard Warshak’s “Parenting By the Clock” on the evolution of the “Best Interests of the Child” standard.)

Not only did the available studies and assumptions about maternal care entrench women as the primary caregivers, but the feminism of the day also reinforced their roles as primary parents in the event of divorce or breakup.

Betty Friedan, who is largely credited with launching the feminist Second Wave in 1963 by publishing The Feminine Mystique, worried that the 1960s housewife would not be motivated enough to leave hearth and home for higher education and the workplace.

According to the survey of her college graduating class that inspired the book, women in suburbia were depressed, but not sufficiently depressed to do anything about it. She figured that she needed to jolt women out of their stupor, so she wrote a book about women without aspirations beyond the domestic. In that book, among other things, she heaped scorn upon domestic life.

Friedan later expressed regret for that scorn. In a 1980 promotional interview for her forgotten book, The Second Stage, she told the interviewer that family was, after all, a powerful need for women; one that had real value. As the piece contended:

Could this be the same Betty Friedan who once compared the lot of a suburban housewife and mother to a “comfortable concentration camp’’?

“That was a ridiculous analogy,’’ she agrees. “I mean, come on! It denied the basic satisfactions of my own life as a suburban housewife.”

“But I’m not wrong when I say that we had to break through . . . the feminine mystique,’’ Mrs. Friedan continues. “What we had to do in the women’s movement . . . was right . . . but some of the rhetoric got off.’’

Her use of the past tense when she talks about what the women’s movement “had to do’’ is intentional. It signals a moving on from the “first stage’’ of the movement to what she now is defining as its “second stage.’’…

“The so-called radical feminists developed a lot of rhetoric against the family and against the role of woman as defined in the family,’’ Mrs. Friedan says. “They did some valuable work, but a lot of it was twisted somehow [somehow, eh?] and began to be repudiation [of the family], throwing the baby out with the bath water.”

“They seemed to create the impression that the all-important thing was career and profession, and . . . downplayed the part of woman that is defined in terms of love and nurturing.’’

The result, she continues, was that “women whose very identity had been based completely on family . . . felt that a major part of the women’s movement sneered at them, and that it wasn’t for them.”

‘’That shouldn’t have been,’’ she concludes, ‘’and I am not free of guilt for that.’’

Alas, her regret came too little, too late. By 1970, a full 10 years before Friedan tried to usher in a second stage to women’s liberation, others had begun building off of her popular denigration of domestic life, doling out much harsher terms for housewifery and motherhood.

With radicals comparing childbirth to “shitting pumpkins” and Kate Millett’s Sexual Politics popping up in new women’s studies syllabi all over the country, Gloria Steinem, then the rising star in the movement, must have sounded rather reasonable in 1970 when this essay for Time was written, stating:

Assuming, however, that these blatantly sexist [marriage] laws are abolished or reformed, that job discrimination is forbidden, that parents share financial responsibility for each other and the children, and that sexual relationships become partnerships of equal adults (some pretty big assumptions), then marriage will probably go right on. Men and women are, after all, physically complementary. When society stops encouraging men to be exploiters and women to be parasites, they may turn out to be more complementary in emotion as well.

Housewifery and motherhood had become lesser, unacceptable choices for women. The woman as parasite.

But the insults were not enough to achieve what the feminists had decided they wanted: 50/50 boardroom parity. That’s when we would know that we won — when the numbers matched up.

In practice, this meant that if newly liberated women only jettisoned their husbands under the new divorce laws, but continued living on their ex-husbands’ paychecks, they wouldn’t necessarily enter the workforce, and would continue to be “parasites.” So feminists sought to end alimony, or spousal support payments.

Feminists were largely successful at curtailing this kind of support. Women all over the country could completely cut themselves away from their ex-husbands, except for the kid exchanges. Because clearly women’s independence would require that fathers take on a considerable share of the childcare burden. Shared parenting was therefore an essential element of women’s liberation.

Fathers jumping into childcare was such an important idea that it was the subject of a 1979 movie, Kramer vs. Kramer, which won Best Picture, Best Director, Best Actor (Dustin Hoffman), Best Supporting Actress (Meryl Streep; her first, making this the movie that launched her), Best Adapted Screenplay, and also received four other Oscar nominations.

The most famous scene is probably the emotional witness stand plea for fathers from Ted Kramer (Hoffman). There is another, from Joanna Kramer (Streep) but it is the conclusion and will spoil the movie, which I recommend watching. It might be more relevant today than it was then.

So what happened?

A major element of the feminist utopia must have seemed imminent. Women would financially support themselves and never be dependent on anyone else, especially men, and fathers would take on half of the hands-on parenting time.

Soon, however, the law of unintended consequences came into play.

Eliminating spousal support turned out to be a draconian measure for the 35-year-old woman with children who had not worked outside the home in 10–plus years and may or may not have completed college. (See for example, “A Reminiscence,” page 54.) Compassionate courts and regretful feminists needed a new plan.

The divorce bar started disguising spousal support as child support, which had the extra advantage of being more tax-neutral. Alimony was deductible by the ex-husband and taxable to the ex-wife. Child support was neither. Guidelines concerning what was alimony and what was child support were sufficiently complicated to allow this to happen, and tax reform in 1984 did not simplify matters.

States also gained an incentive to favor child support.

In the 1950s, when welfare laws were new, the federal government required states to notify the Aid to Families With Dependent Children program of children who were or should be receiving child support.

At the time this wasn’t a large subset of the population. By 1975, however, divorce and declining marriage rates had changed that reality, so Congress added a part D to Title IV of the Social Security Act. That addition provided federal matching funds for child support collected, which might sound unproblematic at first blush but has turned out to be sinister in practice, incentivizing custody and support awards to one parent, usually the mother, and creating a de facto debtors’ prisons for fathers, a problem only now seeing some reform. (For example, these Georgia changes will take effect July 1, 2018. They are the latest reforms enacted to comply with regulatory changes initiated by the Obama Administration in 2014.)

In the many decades prior to these reforms, however, the political “attractiveness” of child support led to decisions for mothers. Child support depends greatly on who has physical custody of the children, so mothers retaining primary physical custody became a preference for both feminists and state governments.

By the mid-1980s, feminists did a complete about-face. See, for example, this write-up for the Chicago Tribune in 1986:

A series of divorce laws pushed into practice by the women’s movement should be changed because they penalize women who deserve alimony, author Betty Friedan and other feminists said Wednesday.

‘There is a false illusion of equality in current divorce proceedings,’ Friedan said at the annual meeting of the American Sociological Association. She called reform divorce laws, enacted over the last 15 years in almost every state, ‘male models for equality . . . that penalize women.’

Friedan, who wrote The Feminine Mystique in 1963 and is credited as a founder of the women’s movement, called for a change in the newly enacted divorce laws — the same laws the women’s movement lobbied for in an effort to make the courts treat women equally with men. Other feminists agreed.

Courts, in turn, were seduced by poor research published in the book The Divorce Revolution (1985). Lenore Weitzman, a sociologist, used a small sample of wealthy couples in Los Angeles to show general trends and did not catch a computer weighting error. Her published research grossly overstated the economic consequences for men and women after divorce.

That divorce increases men’s standard of living by 42 percent and decreases women’s by 73 percent became the popular-but-false statistic of the decade. It was reported everywhere, and since it confirmed prevailing media biases, it felt too good to fact-check.

It wasn’t until 1996 that contrary findings finally received a fraction of the attention given to Weitzman’s original errors, but by then the damage had been done.

As a result of reforms prompted by her faulty research, post-divorce settlement math got more complicated.

To rectify the (false) injustice, courts started routinely using all sorts of assumptions and theories about income, imputed income, retirement benefits — basically any theory that would shift funds from ex-husbands to ex-wives. This fed into the “debtors’ prison for dads” problem, as fathers began to face support payments they could not keep up with.

To sustain all of this, culturally speaking, we needed the doofus dad and the deadbeat dad stereotypes, both of which became popular around this time. Additionally, mothers had to keep physical custody. That was the new essential, no matter how much sense Ted Kramer’s plea made.

Thus, as women sought to break out of domestic roles and the old stereotypical assumptions about sex, family law reinforced those assumptions.

The divorce rate remained high and only leveled off because the marriage rate dropped. The number of kids in fatherless homes skyrocketed. According to fathers.com, citing data from the U.S. Census Bureau, an increase in the number of premarital births, as well as high divorce rates, led to a rise in the percentage of children living with one parent:

from 9.1 percent in 1960 to 20.7 percent in 2012. Currently, 55.1 percent of all black children, 31.1 percent of all Hispanic children, and 20.7 percent of all white children are living in single-parent homes.

Isn’t it ironic? Family law ensured that the old sex role assumptions — the ones the ‘60s feminists sought to break — would be particularly intransigent in the event of divorce when the ex-partners needed to be most flexible about parenting roles. The legacy of fatherlessness is just a bonus misery out of this messed up history.

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